Category Archives: Law: Constitutional Law

Someone asks,

Suppose Bush were to decide that a confirmation fight (or even just a hearing) over Gonzales's successor would be too painful, and a recess appointment too controversial. Does he have to nominate anyone? Or can he go through the rest of his Administration with Solicitor General Clement as an interim AG? Are there any powers that a confirmed Attorney General has that an interim Attorney General doesn't? Are there any steps that the Senate or anyone else can take in the event of that eventuality?

As far as I know, an acting Attorney General has all the powers of a confirmed Attorney General; the difference is political, not legal.

Although there is no way that Congress can force the President to exercise his appointment power, I suppose it would be possible for Congress to condition the exercise certain powers of the Attorney General on there being a confirmed holder of the office. I don't think it would be good policy — in fact I think it would be very bad policy to leave the country unable to do things that need doing — but offhand I can't see a constitutional obstacle to such a statute.

There is also a very weird Constitutional argument that might be brought into play but I think it would —- and should — fail. But here it is anyway:

The Solicitor General is appointed by the President by and with the consent of the Senate, as is the Attorney General. But under Article II, Section 2, paragraph two of the Constitution, there are (at least) two kinds of major Presidential appointees: “Officers of the United States” and “Inferior Officers”. The full “Officers” require Senate confirmation; Congress can waive the confirmation requirement for the “inferior” kind. If Senate confirmation has been waived, then only the President, or courts, or “Heads of Department” (usually understood to mean Officers) can appoint “inferior officers”. Let's assume that the Attorney General appoints an “inferior officer” who then makes a decision altering the rights, duties, or responsibilities of someone willing to sue (thus solving the standing issue).

The aggrieved person could argue that the Solicitor General is only a mere “inferior officer” himself — one for whom, as it happened, Congress had not waived the confirmation requirement, but for whom it could if it so chose. If this were correct, any “inferior officer” appointed by the acting Attorney General (himself an inferior officer) held that office illegally and his decisions are null and void.

But is this a good argument? I'm somewhat dubious.

First, one would have to argue that even if the Solicitor General were an inferior officer ordinarily, his being the acting Head of Department didn't give him the necessary appointing power for constitutional purposes by virtue of his acting status. This part of the argument takes us to unchartered waters. Some formalists would argue that a department head is a department head. Other formalists would argue that status comes at the time of appointment. A structuralist would worry that if the President could place non-officers into officer positions in this manner it would undermine the separation of powers. Traditionalists might say that we've often let acting officials run things, and we should be mindful of the need to have a working government would likely carry the day. Being a structuralist at heart, I think the argument here isn't bad — but it all depends on the Solicitor General being “inferior” in the first place.

And this second part of the argument seems much more doubtful. One would also have to convince a court that the Solicitor General wasn't an “officer of the United States” in his own right. That's far from obvious.

There is no bright line between the two types of appointees. We do know that Cabinet officers like the Attorney General are unquestionably “Officers” and that the Special Prosecutor under the now-lapsed statute authorizing them was — barely — an “inferior officer”.

The argument that the Solicitor General is only “inferior,” relies on the facts that he reports to the AG, and is actually the number four official in the DoJ pecking order. No court has ever held that reporting to someone rather than directly to the President is a necessary element of “officerness” but then again no court has ever held otherwise, so the argument remains open. Plus, since the Attorney General is only #4, calling him an “officer” would suggest very strongly that there are four “officers” in the DoJ, and several in every other cabinet department as well; that sounds like a lot.

But given the long history and tradition of the office of Solicitor General, I don't think most courts would find it very difficult to say that the Solicitor General was an “officer”. The Solicitor General has important powers and responsibilities over litigation, including the power to “confess judgment” — throw in the towel on appeal before the Supreme Court for a case the government won below. The office of Solicitor General dates back to 1870, and has a long and generally admirable tradition of independence, so much so that the Solicitor General is sometimes called the “tenth Justice”. I think the Solicitor General is probably an “officer” in his own right, and regardless of what I think, I'm pretty sure most courts and Justices would see it that way.

In short, no, I think there's no legal reason the Solicitor General can't be acting Attorney General for a long, long time. Even so, I predict that the he won't be.

Secrecy News brings word of a really interesting state secrets decision from the DC Circuit:

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege.

The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government's invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case.

“In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said.

The Court presented its ruling as a straightforward application of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege.

“The majority's reversal of the district court's decision,” wrote Judge Janice Rogers Brown, “pushes this circuit's state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.”

The case was remanded to the district court level for further deliberation.

See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007.

Note that Janice Rogers Brown is on every short list of Republicans whom the Administration might seek to promote if a Supreme Court seats opens up. And that she's seriously extreme.

I have a modest proposal that will go a long way to stopping idiocies like this and this, in which Congresspersons and reporters covering national politics demonstrate a basic ignorance of the Constitution.

Please don't laugh, because I am serious about this: the full text of the Constitution should be printed in every US passport.

The US Passport was recently re-designed. What had once had a certain classic simplicity was tarted up with moderately kitschy pictures of “American Icons” and embellished with “inspirational quotes”:

The new passport comes with its own name: “American Icon.” It’s hard to think of one that was left out.

The inside cover sports an engraving of the battle scene that inspired “The Star Spangled Banner.” A couple of lines of the anthem, starting with, “O say, does that star-spangled banner yet wave,” are scrawled in what the State Department says is Francis Scott Key’s own cursive.

The short, 28-page version of the passport comes with 13 inspirational quotes, including six from United States presidents and one from a Mohawk Thanksgiving speech. The pages, done in a pink-grey-blue palate, are rife with portraits of Americana ranging from a clipper ship to Mount Rushmore to a long-horn cattle drive.

You can see an animation of the whole design at the State Department's website.

My plan is simple: remove the kitsch, replace it with the Declaration of Independence and the Constitution. (Or, as a fallback, keep the kitsch and at least add the Declaration and the Constitution.)

Travel these days involves a great deal of waiting in line, not least at security and immigration, times when a passport is often in hand and Americans might find themselves studying the Constitution if they have nothing else to read.

In the Constitution they might find all sorts of concealed gems, ranging from the clause providing for the impeachment of all “civil officers,” to the (long) list of Congressional powers and the (much shorter) list of Presidential powers, to that interesting Fourth Amendment — good reading while you are waiting to be frisked at the airport.

More than 74 million Americans have a passport, and the number grows every year. The passport is a great opportunity for a real civics lesson based on the things that make this country great — our real American Icons: the Declaration of Independence and the Constitution of the United States of America.

Secrecy News points us to this important document:

A major new report (pdf) from the Congressional Research Service examines the congressional contempt power.

“Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance (inherent contempt), punish the contemnor (criminal contempt), and/or to remove the obstruction (civil contempt).”

“Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in the last seventy years the contempt power (primarily through the criminal contempt process) has generally been employed only in instances of refusals of witnesses to appear before committees, to respond to questions, or to produce documents.”

“This report examines the source of the contempt power, reviews the historical development of the early case law, outlines the statutory and common law basis for Congress’s contempt power, and analyzes the procedures associated with each of the three different types of contempt proceedings. In addition, the report discusses limitations both nonconstitutional and constitutionally based on the power.”

See “Congress’s Contempt Power: Law, History, Practice, and Procedure,” July 24, 2007.

South of the Suwannee has a comment on what looks like an interesting constitutional issue. Because I think the posting understandably kinda misses a key point, I'm going to take the liberty of quoting the whole thing:

Why Lawyers Have a Bad Image

Sheldon Schlesinger is a 77-year-old Fort Lauderdale attorney who has had a lucrative career in the personal injury field.

That's fine, someone has to represent the injured.

In fact, his firm's website proclaims, “Through all of the work we have done, our personal injury lawyers have never lost sight of what is most important — the health of our clients.”

Not many people are going to be sympathetic to him, however, when he froze payments to a paralyzed girl in order to collect more than his $1,000,000+ fee authorized by the State Legislature.

Schlesinger wants another $677,000 (which I doubt will change his lifestyle nor put his law firm in danger of unprofitability) and obviously he thinks he deserves it.

And it seems he's willing to let the real victim continue to suffer to get his payoff.

I'm sure that is how most people would see this story. But not me — and not because I belong to the lawyers' mutual protection society either.

Although the linked-to story is a bit thin, what seems to have happened is this:

• Minouche Noel (now 19 years old) suffers terrible injuries as an infant at the hands of a state entity and is paralyzed as a result;
• Noel (client) and Sheldon Schlesinger (lawyer) sign a contingency fee agreement. We don't know the details, but state law caps contingency fees in these cases at 25% for legal fees and 6% for lobbying fees. One report says his contract provided for 20% of the recovery;
• Lawyer wins $8.5-million award from a jury in 1999 against state of Florida;
• Florida law prohibits payouts over $200,000 for negligence by government officials unless the legislature votes the money;
• Seven years of lobbying, including work by lobbyists hired by lawyer, finally result in legislation funding the payment;
• But the bill caps the lawyer's own fees at $1,074,667, and the lobbyist's fee at $85,000. That's well below the statutory limit, and, lawyer says, less than was agreed.
• Via the Miami Herald, we learn that “Court records show that the Schlesinger law firm earlier this month filed a lien against Noel and her parents, who now live in Brevard County after moving from Fort Lauderdale.” The Noels on July 9 agree to pay $546,000 to the law firm and another $120,000 for lobbying expenses.

Bottom line: Since the lawyer never agreed to the compensation limit in the bill, he filed a lien against the payment. It may be that the July 9 agreement satisfied the lien, in which case the issue is resolved legally. South of the Suwannee says the filing of the lien was horrible and greedy since it threatened to delay (or actually delayed?) the payout to the victim. And from a quick online scan of the press, the newspapers all seem to agree that this is a simple case of lawyerly greed.

Assuming the facts above are correct, however, I think that this instant conventional wisdom is wrong: this isn't a case of greed, and it isn't simple.

First, there's that pesky US Constitution. Article I, sec. 10 states,

Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

In short, the Constitution bars states (but not Congress) from “impairment of contracts”. I'd say that this Florida legislation stands a good chance of violating of that constitutional prohibition. The modern test states that a state statute which substantially impairs a private contract falls afoul of this prohibition unless the state has “a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem.” See Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983). I am not at all sure that this narrowly targeted bill meets that test. And surely it can't be wrong to stand on constitutional principle?

Second, and simpler, I think it could fairly be argued that Mr. Schlesinger is not being simply greedy, or that even if he were being greedy then his greed serves a public purpose. It seems to have taken enormous perseverance — almost twenty years — to first win the case and then obtain this payment for his client. If the state legislature is free after the fact to fix payment at whatever it pleases, ignoring its own statutes that set reasonable bounds on what contingency fees can be, this will further reduce the incentive for people to take on the arduous and risky job of suing the state for its negligence. In short, victims will have a lot more trouble finding lawyers who won't demand money up front. And a system that required a lawyer to lobby for her fee as well as for her client's payment is a bad system — it creates a built-in conflict of interest between lawyer and client, one that might require hiring yet another lawyer to manage the lobbying process (at further expense to the client).

Having set the ground rules for contingency fees by statute, and running a rigged game in which it is so very, very hard for persons hurt by Florida state entities' negligence to recover, the state legislature should not also be able to pull the rug out from under the agreements that make those recoveries possible.

I don't know if there was some means other than the lien by which Mr. Schlesinger could have preserved his rights and the legal position. If there was one that wouldn't delay payments to the victim, he should have taken it. But even that's not a simple question: I wonder if declaratory judgment, for example, might have run the risk that a court would have declared the entire bill void, leaving his client with nothing. Which would be an even worse result.

As the Herald article notes, “Bruce Rogow, the lawyer who filed the lien on behalf of Schlesinger, said the law firm was following the letter of the law. Rogow said the wording of the claims bill, HB 593, limited what the attorneys could be paid out of Minouche Noel's portion, but it did not limit what Jean and Flora Noel could pay the attorneys.”