Michael McConnell

Michael McConnell

Read his column at Reuters: “These are significant rulings in support of federalism and the ideal of limited government. They will reverberate in litigation for years to come.”

And a post over on the Volokh Conspiracy blog: “The Supreme Court’s Spending Clause holding, which commanded seven (!) votes, may be the most important aspect of yesterday’s health care decision, from the perspective of constitutional federalism.”


O’s ugly ‘warning’

By all accounts, President Obama’s lawyers did a poor job of defending the constitutionality of his signature health-care-reform law in the Supreme Court last week. So he’s rearguing the case himself. On Monday, he declared that it would be an “unprecedented, extraordinary step” for the court to overturn a law “passed by a strong majority of a democratically elected Congress.”

This statement is puzzling, to say the least. It is by no means “unprecedented” or “extraordinary” for the court to strike down the act of a democratically elected legislature.

Has the president not heard of Roe v. Wade (1973), where the court invalidated the democratically enacted laws of all 50 states? And even Marbury v. Madison (1803), which struck down a section of the First Judiciary Act?

How about INS v. Chadha (1983), where the court invalidated over 200 statutory provisions, many enacted by overwhelming bipartisan majorities?

Is the president unaware that the court in recent years has declared unconstitutional the Line Item Veto Act (struck down in 1998), major portions of the Sentencing Reform Act (2005), the Religious Freedom Restoration Act (1997) and two different attempts at campaign-finance law (in 1976 and 2010) — just to name some of the most prominent?

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On January 10, I published an op-ed in the Wall Street Journal stating that I could see no plausible legal argument to support President Obama’s recent recess appointments to the Consumer Financial Protection Board and the National Labor Relations Board. I noted that the Administration had not relied on any opinion from the Office of Legal Counsel, and inferred that it must not have obtained such an opinion. http://www.advancingafreesociety.org/2012/01/10/democrats-and-executive-outreach/

Today, January 12, 2012, the Administration released an Office of Legal Counsel opinion, dated January 6, opining that the recess appointments were constitutional. The Opinion concludes that the pro forma sessions of the Senate conducted every three days during the December and January holiday are not sufficiently substantive to interrupt a Senate recess, meaning that the Senate was in recess from December 17 well into January.

I compliment the Administration for releasing the opinion, while still wondering what was their reason was for delay. It is reassuring that in this instance the Administration followed proper legal channels before taking a controversial constitutional position at odds with recent precedent (precedent established in 2007 by Senate Democrats, including then-Senator Obama).

I have not had time to give careful study to the 23-page OLC Opinion, but my preliminary reaction is not to be convinced. The Opinion makes arguments that are not frivolous, but it seems to me the counterarguments are more powerful.

In particular, the Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter.  First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions – not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.

Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place – wholly apart from the pro forma issue – consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.

The fact that the Administration obtained an OLC opinion in advance of the appointments (the Opinion is dated two days after the appointments, but presumably it reflects the advice given to the President in advance) shows that they were not made, as initially appeared, without benefit of independent legal analysis. And the public should welcome the release of the opinion itself, so that we can know the offical legal basis for the President’s acts, rather than having to guess. On the merits, though, at least on first study, the Opinion does not have the better of the argument.

One reason so many Americans entrusted Barack Obama with the presidency was his pledge to correct the prior administration’s tendency to push unilateral executive power beyond constitutional and customary limits.

Yet last week’s recess appointments of Richard Cordray as the first chief of the Consumer Financial Protection Bureau and three new members to the President’s National Labor Relations Board—taken together with other aggressive and probably unconstitutional executive actions—suggest that this president lacks a proper respect for constitutional checks and balances.

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Budget Tricks

I have been following budget gimmickry in Washington since my days as Assistant General Counsel of the Office of Management and Budget. Some old tricks were largely ended by the adoption of budget “scoring” by the Congressional Budget Office. Admittedly, CBO scoring is partly an exercise in suspension of disbelief – CBO is forced to believe that Congress will actually enact what it says it will enact, and that these measures will have the results that are predicted. But at least all proposals are subjected to the same set of rules, which enables us to compare competing proposals.

There are lots of ways to make CBO scoring more accurate, and if Congress were serious about budgetary transparency it would institute a basement-to-attic reform of the process. But I want to call attention to one gimmick that is especially common and especially pernicious: to use savings or tax increases over a period of years to “pay for” spending or tax cuts in one year. For example, members of Congress of both parties wish to extend the two percent payroll tax holiday for an additional year, at a one-year cost to the Treasury of $120 billion. Democrats propose to “pay for” the one-year stimulus by ten years of increased taxes on high-income persons. Republicans propose to “pay for” the same by ten years of decreased expenditures on such items as federal employee salaries, Medicare benefits for high-income seniors, and higher fees on Fannie Mae and Freddie Mac.

Wholly apart from the merits of any of these proposals, it defeats the purpose of the budgetary rules to spend more in the next year, based on promises to tax more or spend less in the future. Taxes in the future will be needed to pay for expenditures in the future. If these revenues have already been spent – in one year – they will not be available to be spent over the years they are collected. Multi-year financing of single-year programs is just deficit spending under a different name.

The entire purpose of CBO scoring is to constrain Congress’s tendency to confer transient benefits on current voters at the expense of future generations. To treat these “pay as you go” rules as satisfied by imposing costs or sacrifices on future years is contradictory and self-defeating.

(photo credit: jenny.nash712)

Today, the Obama administration will invite the Supreme Court to open a new front in the culture wars. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC concerns a commissioned minister, Cheryl Perich, who taught elementary school and led chapel devotions at a small Lutheran school outside Detroit. Ms. Perich became ill and was replaced in the classroom by a substitute. In the middle of the school year she sought to return and then, instead of attempting to work out the dispute through the church’s reconciliation process, she threatened to sue.

As relations broke down, the church congregation voted to withdraw her "call" to the ministry, and she ceased to be eligible for her prior job. She sued under the Americans with Disabilities Act, with the support of the federal Equal Employment Opportunity Commission.

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A Free Speech Year at the Court

The Supreme Court completed its 2010 term at the end of June with no blockbusters, few surprises, and an unbroken string of victories for free-speech plaintiffs. It was a year to take a deep breath before the onslaught of divisive cases next year: Same-sex marriage, the constitutional right of religious groups to choose their clergy without government interference, and enforcement of laws against illegal immigration are likely to be among them. We do not yet know whether the Court will tackle the health-care issue next year as well, but the fact that the two courts of appeals that have addressed the issue have come down on opposite sides makes it highly probable.

Despite the usual press rumblings about a “divided court,” almost half the cases—48 percent—were decided by a unanimous vote, and another 28 percent were decided with only one or two dissents. During his confirmation hearings, John Roberts declared his hope that the Court under his leadership would decide cases more narrowly, with greater consensus. This seems to be happening. For the last three years, the frequency of unanimous decisions has been steadily increasing.

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A few days ago in The New Republic, Judge Richard Posner, my former colleague and one of the smartest and least partisan men I know, wrote an thought-provoking essay entitled “Let’s Be Honest: We’re in a Depression, Not a Recession, and There’s No End in Sight.”

Like anything Posner writes, it deserves careful attention.

He begins with the fact that we have a short-term problem of anemic economic activity and a long-term problem of extraordinary growth in the federal deficit. “These annual rates of growth,” he accurately points out, “vastly exceed the rate of the nation’s economic growth even in prosperous times, and if they continue will bankrupt the federal government.”

Posner says that, “politics aside,” the solution to the long-term problem is reasonably clear. Social Security costs “can easily be controlled” by a combination of raising the retirement age, revising the cost-of-living adjustment, and means-testing. Medicare is more difficult, but means-testing and institution of co-payments and deductibles to make recipients more cost-aware would help. Posner even seems to endorse Rep. Paul Ryan’s plan to convert Medicare, for persons now under 55, to a system of subsidies for the purchase of health insurance instead of a pay-for-service scheme with no feasible cost controls. He endorses tax reform through ending “loopholes,” such as the mortgage deduction, and says that all Americans who earn income should pay something in tax.

All of this is sensible.

But he says that these reforms, “if they are implemented while the economy is still struggling,” would be counterproductive. The “result may actually be to increase the deficit” because “anything that takes money out of the economy, such as reducing federal spending or increasing federal taxes, will exacerbate the current depression. Consumers will have less money to spend, and this will discourage employers from hiring.” The “result,” he says “is a quandary. I don’t see a way out of it. I hope others do.” “So what can be done now?” he asks, rhetorically. Probably nothing.”

I just hope Posner’s pessimism does not detract from the fierce urgency of doing something now. I wish to make four points in response to Posner’s pessimism.

First, there is precious little empirical evidence that deficit spending actually fosters economic growth. Lengthening the duration of unemployment benefits and expanding Medicaid, food stamps, and other assistance to the poor may be good policy on humanitarian grounds, but they create disincentives to work and likely have a negative effect on economic growth. Additional temporary transfers to state and local governments merely postpones the inevitable day of necessary economies. I realize that the idea that deficit spending has a wondrous “multiplier effect” is a cherished tenet of Keynesian economics – I wasn’t asleep in Econ 102 – but increasingly this looks like a nice idea that just isn’t so. Robert Barro’s piece on this site reviews the evidence.  If Barro is right, we can start cutting now, without any short-term ill consequences for the depression.

But even if Keynesian skeptics are wrong, even if the deficit spending multiplier is a true fact, we still need to enact spending cuts ASAP. It is difficult to stop spending quickly. Try as they could, the House Republicans found it difficult to cut this year’s spending by more than a trivial few tens of billions in the reconciliation deal. Today’s spending is the budgetary floor for tomorrow’s spending. Real spending reform, which means entitlement reform, must be phased in over a course of many years. Ryan’s Medicare reform, radical though it is, does not start to produce actual savings until 2022. That is not a reason to delay; it is a reason to get started as soon as possible, so that the savings arrive as soon as possible.

Third, Posner ignores a major driver of increased deficits: the ironically named Affordable Care Act, better known as Obamacare. Putting aside the fact that, like most expansions of entitlements, the official estimates of future costs are likely to understated by a significant factor, even the official estimates admit a cost of $1 trillion over ten years. The bill was “revenue neutral” only because it contained half a trillion in tax increases and half a trillion in Medicare cuts. At this point of crisis in our fiscal affairs, it makes no sense to add a trillion dollars in extra entitlement spending. If the tax increases and Medicare cuts are a good idea, let’s use the revenue to reduce our deficits, not to spend more on a new entitlement. It is difficult to trim existent entitlements because people rely on them. No one is yet relying on the new benefits of Obamacare; indeed, if the polls are any indication, most people do not think the bill will make an improvement in their lives. The simplest and least painful way to reduce our budget deficit is to stop this new spending in its tracks, before anyone becomes dependent on it.

Finally, Posner makes no mention of the possibilities of jump-starting the economy through regulatory reform. I was part of the team that reexamined the regulatory overlay back in the early days of the Reagan Administration, and our reform efforts were a significant part of what nursed the Carter-era malaise economy back to health. Sensible changes to regulations regarding energy production in the United States, the costly but useless Sarbanes-Oxley regulations, and the counterproductive new Dodd-Frank rules would probably add a much-needed percentage point to our GDP growth, producing tens of thousands of jobs. That effort should begin right away.

To say that nothing can be done ensures that nothing will be done. We are in a deep economic downturn; Posner is probably right to call it a depression. And we face a deeper long term catastrophe of excessive spending, which gets worse the longer we fail to deal with it. But the extent of the problem is not a reason to despair. It is a reason to summon forth the political will to turn things around.

(photo credit: Brian Talbot)

Like most Americans, I have been cheering and praying for the brave souls who are fighting the dictatorial regime in Syria. But I had occasion to ask a young friend of mine, who has Christian family members living in Syria, his view. He provides a different perspective, which I have not seen expressed in mainstream discussion. With his permission, I am sharing it with a broader audience:

I have conflicting thoughts about the events in Syria. On the one hand, I hate the brutal actions that the government is taking against protesters, and sympathize with their protests against the dictatorial and repressive actions of the government. I know what it is like to live in fear, every day, of the secret police (“mukhabarat”) and how nothing you say, even in your home, is truly private, and can cause you to come under the government’s wrath. I had truly hoped that Bashar Asaad, with his British education, was reform-minded, and that he would have initiated greater freedoms, but after showing some signs that he would do so, he has gone the other way.

On the other hand, I am fearful of what would happen if this current regime is overthrown. The possibility of a civil war is all too real, and even if there are democratic elections, the moderate, tolerant candidates and parties are unlikely to be the ones elected. Some relatives were visiting this summer from Syria, and they said that the Christian community is truly terrified of Asaad being overthrown, because as a member of a religious minority himself, he has been their ally and protected their freedom to worship (of course it is a limited freedom, as they are not free to evangelize Muslims or anything of the sort, but a freedom nonetheless). There have actually been some demonstrations on Asaad’s behalf by Christians. I know that living there, out of the all the things we feared, we never feared going to church, or church camps and events. Who knows what would happen to such freedoms if Sunni leadership, and possibly more fundamentalist Islamic leadership is instituted? Is it worse to live under a dictatorial, undemocratic regime where certain freedoms are restricted, but one still has the freedom to worship, or to live under a seemingly democratic regime which would endanger your freedom to worship?

So ideally, we would want a truly democratically elected government instituted which would preserve and enhance religious liberties and all other liberties, but I don’t know if that ideal is possible in Syria at this point. I hope it is.

(photo credit: zz77)