Читать книгу Lawless - David E. Bernstein - Страница 10
ОглавлениеNO JUSTICE AT THE JUSTICE DEPARTMENT
THE JUSTICE DEPARTMENT, run for most of the Obama administration by the president’s friend and confidant, Attorney General Eric Holder, has enabled the Obama administration’s lawlessness. This enabling was sometimes direct. Several times the Justice Department filed briefs asking the Supreme Court to adopt outlandish legal theories that pleased important Democratic constituencies but were rejected by 9–0 votes in the Supreme Court.1 The Department also failed to cooperate with congressional investigators engaging in normal oversight of the administration’s activities—so much so that Holder was the first attorney general to be held in contempt of Congress. Holder’s behavior was sufficiently troubling that even most House Democrats declined to vote against the contempt resolution.2
Beyond that, rather than setting a good example for the rest of the administration that the rule of law trumps politics, Holder accelerated the Justice Department’s creeping politicization. Holder showed his lack of concern for legal niceties very early in the Obama administration. In April 2009, less than three months after Inauguration Day, the administration decided to push for a law that would grant Washington, D.C., an elected, voting representative in the House of Representatives. The Constitution, however, limits formal representation in Congress to the “citizens of the several states.” D.C. is designated a special federal enclave, and is not a state or part of a state and therefore may not have a voting representative in Congress.3
The Justice Department had affirmed and reaffirmed this understanding of the Constitution repeatedly over the decades through formal opinions offered by the Office of Legal Counsel, a group of White House lawyers hired to give the president sound, objective legal advice. OLC attorneys, as part of the executive branch of government, try very hard to find legal support for the president’s policies. Attorneys at Obama’s OLC nevertheless objected to the D.C. voting bill, citing OLC memos dating back decades as well as the plain text of the Constitution.
Instead of deferring to the OLC, Holder took the highly unusual step of seeking a second opinion from lawyers in the Solicitor General’s office. Holder did not ask the SG’s office if the law was constitutional, because he knew the answer would almost certainly have been a strong “no.” Instead, he asked whether the lawyers in the SG’s office would be able to defend the law in court. The SG’s office, by tradition, will defend any federal law in court, so long as the defense is not entirely frivolous. Given that very lenient standard, the SG’s office told Holder it would defend the law if passed.4 Holder then gave the president the legal green light to endorse the voting bill.
Very little was at stake. Even if the proposed law had passed, the D.C. representative’s vote would almost never have been decisive. If such a vote ever did break a tie, any law passed because of that vote would have immediately been challenged in court. A judge would then almost certainly have invalidated the law because the deciding vote was cast by someone whom the Constitution bans from voting in Congress.
In other words, the D.C. voting bill was purely symbolic, a mere sop to liberal constituency groups that have been unsuccessfully pushing for D.C. statehood and other ways of increasing the (overwhelmingly Democratic) District’s political power. Holder was nevertheless ready and willing to undermine the OLC. This suggested right at the start of the administration that its advice would be ignored and overridden whenever it might impede the administration’s desired political goals.
The OLC rebuffed the administration again when it advised the president that he could not ignore the War Powers Resolution when it resorted to military force in Libya (see chapter 3). This led Obama to appoint Virginia Seitz to run the OLC. Seitz was expected to be more likely than her predecessor to tell the president what he wanted to hear.5 The Senate confirmed Seitz in June 2011, and she soon lived up to expectations.
Seitz’s OLC issued an opinion that supported the legality of one of Obama’s most egregiously unconstitutional actions. The Constitution provides that the president may temporarily appoint someone as a “recess appointment” when the Senate is in recess. The Senate, in part due to growing partisan bitterness in Washington, has became increasingly assertive of its power to refuse to consent to high-level presidential appointments. During the Republican George W. Bush administration, Democratic Senate Majority Leader Harry Reid held so-called pro forma sessions in which every several days a senator would open the Senate and then adjourn, usually, but not always, without conducting business. The Senate was not in official recess during these sessions, and the president therefore could not make a recess appointment.
This frustrated the Bush administration, and led to discussions within the administration about whether the president could declare the pro forma sessions to be illegitimate, and the Senate to really be in recess. If so, the president would have the power to make recess appointments even though the Senate was not officially in recess. The OLC conducted some preliminary research into the issue, but the Bush administration never pursued it.
The Obama administration, as we shall see, was much more willing to push the limits of the recess appointments power. From the start it sought to use recess appointments not just to overcome Senate resistance to confirming President Obama’s nominees but also to avoid potentially embarrassing Senate confirmation hearings. For example, Obama used a recess appointment to install Donald Berwick to run the Center for Medicare Services. Given that Democrats had a large majority in the Senate, Berwick almost certainly would have won a confirmation battle.
The problem was that Berwick had praised Britain’s health care system, which is a “single-payer” system run and paid for by the government.6 A fleshing out at a confirmation hearing of Berwick’s views on the government’s proper role in health care delivery might have undermined the moderate image the administration was trying to project on health care. On December 2, 2011, Berwick resigned because Republicans, having picked up seats in the Senate in the 2010 elections, had enough votes to block a formal nomination, and his recess appointment was about to expire.7
The Obama administration went even further with recess appointments later in Obama’s first term. The Republican minority blocked several major appointments through filibusters, and, with the help of the Republican-controlled House, kept the Senate in pro forma session. In retaliation, the Obama administration announced three recess appointments on January 4, 2012, two to the National Labor Relations Board and one to run the new Consumer Financial Protection Bureau. President Obama told the media, “We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”8 Two days later, Seitz’s OLC issued an opinion that the president could reasonably decide that the Senate is not really in session when it was holding pro forma sessions.9 Almost no one found the OLC’s reasoning persuasive.10
The administration’s legal position was also undermined by the Senate’s approval of an extension of a payroll tax cut during a pro forma session less than two weeks prior to the recess appointments, during the time that the OLC and the Obama administration argued that the Senate was in recess. The president signed the bill. It’s absurd to argue, as the administration implicitly did, that the Senate was in recess for the purpose of recess appointments, but was not in recess for the purpose of considering and voting on legislation.11 As law professor Jonathan Turley scolds, “The fact that the administration decided to force a confrontation on such a weak case shows not just a lack of judgment but a cavalier attitude towards the costs of such losses.”12
The Supreme Court ultimately had an opportunity to judge the constitutionality of the recess appointments undertaken when the Senate was in pro forma session. Solicitor General Donald Verrilli gamely tried to argue to the Court that when the Senate refuses to confirm presidential nominees, and that refusal interferes with the working of government, the president’s appointment power must expand to ensure that he can faithfully execute the laws.13
The justices didn’t buy it. Justice Samuel Alito told Verrilli that if presidential appointment power expanded because of an irresponsible or intransigent Senate, this had “nothing whatsoever to do with whether the Senate is in session or not.” Justice Elena Kagan added that the recess appointments power was not meant to deal with mere stubbornness by the Senate. Verrilli then acknowledged that he was arguing that regardless of the original meaning of the recess appointments power, it “may now act as a safety valve” for Senate intransigence. Chief Justice John Roberts retorted, “You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the President submits.” The president’s remedy for nonconfirmation, Roberts suggested, is not to exercise unilateral power, but to nominate someone else the Senate is willing to confirm. A showdown between the president and the Senate, Justice Stephen Breyer chimed in, is a “political problem, not a constitutional problem.”14
Not surprisingly, the Supreme Court held that Obama’s purported recess appointments were unconstitutional and therefore void.15 All nine justices agreed that the Senate, not the White House, gets to decide when the Senate is in recess, and that pro forma sessions in any event count as being in session because the Senate could, if it chose, conduct business during those sessions.
Meanwhile, Holder not only failed to depoliticize the problem-filled Justice Department’s Civil Rights Division but also made things worse. Problems at the division went back at least to January 2001. Outgoing Clinton administration lawyers, worried that the incoming Bush administration would move the division’s policies to the right, engaged in a frenzy of hiring, done in irregular ways, to fill civil service positions with liberals before the Bush administration took over.
These lawyers were hired to help stymie Bush administration priorities, and that’s what they did. Frustrated by the civil servants’ lack of cooperation, Bush administration officials tried to hire more compliant attorneys. They did so by deliberately seeking out attorneys with conservative political views. Implicitly considering ideology in hiring civil service attorneys for the Civil Rights Division was hardly new, albeit illegal; unlike political appointments, career civil service jobs are supposed to go to the most qualified applicants regardless of party affiliation or personal ideology. Bush officials nevertheless considered partisan affiliation and ideology when hiring civil servants. One result was that the Justice Department hired attorneys who had significantly less impressive credentials than was typical for the prestigious Civil Rights Division.16 Democrats had a field day criticizing the Bush Justice Department for violating federal law by hiring lawyers based on their political background.
Meanwhile, many liberal career civil servants behaved badly, seeking to sabotage the lawful enforcement priorities of the Bush administration’s senior appointees. In the Civil Rights Division’s Voting Rights Section, tempers flared over whether the Voting Rights Act should be enforced in a race-neutral manner. The act as written protects the right of all Americans to vote. The Bush administration pursued both traditional enforcement actions investigating the possible suppression of minority voting and also cases involving white voters who allegedly faced discrimination in majority-black districts. Some progressive lawyers in the Voting Rights Section objected on principle to the latter cases, arguing that the purpose of the Voting Rights Act was to protect only minority voting rights. By bringing cases involving alleged discrimination against whites, the administration was diverting resources from the core purpose of the act. Progressive attorneys also resented the Bush administration’s failure to challenge new state voter identification laws, which they argued were meant to discourage minority voter turnout.
Tensions between civil servants and political appointees are fairly common, especially when Republican appointees clash with the overwhelmingly liberal bureaucracy, but the career lawyers’ reactions went way beyond normal bureaucratic infighting. Liberal lawyers harassed colleagues perceived to be conservative, including those hired well before the Bush administration arrived. The DOJ’s Office of the Inspector General (OIG) later reported, for example, that one attorney “was ostracized and ridiculed, and had his work product copied from his computer files and distributed without his knowledge or permission, at least in part because of the perception that he was conservative and because of the legal positions he advocated while working on the submission.”17
Some liberal employees posted on the Internet nonpublic information about goings-on in the Civil Rights Division, accompanied by a “wide array of highly inappropriate remarks ranging from petty and juvenile personal attacks to racist and potentially threatening statements.”18 A supervisor who became aware of such misconduct by one of his employees “not only suggested that the employee disregard counseling and admonishment from Division leadership, but also encouraged the subordinate to continue the improper conduct.”19
When Eric Holder became attorney general, instead of closing down this ideological circus, he became the ringmaster. Holder and his underlings could have signaled an end to the ideological wars in the department, and a desire to depoliticize it, by continuing the prosecution of Bush-era cases brought in good faith by the previous administration that had a valid legal basis. Instead, out of a combination of ideological opposition to race-neutral enforcement of the Voting Rights Act and a desire to shift enforcement resources to the Obama administration’s priorities, the Holder Justice Department made matters worse.
The first sign came when the Civil Rights Division failed to pursue a voter intimidation case arising from the November 2008 election. Video circulated on the Internet that showed two members of the thuggish New Black Panther Party standing outside a polling place in a majority-black precinct in Philadelphia dressed in paramilitary clothing, with one carrying a billy club. In January 2009, just before the Bush administration left office, the Civil Rights Division filed a civil lawsuit under the Voting Rights Act alleging illegal voter intimidation by both men.
In April 2009, the division essentially won the case by default because the defendants failed to appear in court. But the following month, the acting head of the Civil Rights Division reduced the scope of the complaint against the billy-club wielder so that the only consequence was an injunction banning him from carrying a weapon near a Philadelphia voting location through 2012.20 Charges against the second man were dropped entirely.
Some have argued that, given limited prosecutorial resources and the rarity of voter intimidation prosecutions, the case should not have been brought to begin with. Despite the dramatic video, it’s not clear that any voters were actually intimidated.21 Nevertheless, once the case was successful, requiring only negligible additional resources to win a final court order, it was passing strange that the Justice Department declined to see it through.
The Obama administration denied that political appointees played any role in the disposition of the New Black Panther case. But the administration has not been able to explain a stream of emails that went back and forth about the case among senior Obama political appointees in the days before the Justice Department abandoned its prosecution.22 These emails, a federal judge later wrote, “would appear to contradict” Assistant Attorney General (and future Secretary of Labor) Thomas Perez’s sworn testimony before the US Commission on Civil Rights “that political leadership was not involved in that decision.”23
The Justice Department’s Office of Professional Responsibility ultimately investigated the department’s handling of the case. Attorney General Holder told the New York Times while the investigation was still under way that “there is no ‘there’ there,” and that the investigation was over a “made up controversy.”24 Given that Holder was the boss of the OPR employees undertaking the investigation, his public prejudgment compromised the investigation’s integrity.25
The charitable explanation of the New Black Panther Party fiasco is that the Obama administration was rebuking the Bush Justice Department. The new administration sought to send a somewhat juvenile message that “we think the Bush administration’s prosecution priorities were so screwed up, we are not even going to pursue a case it was about to win.” The Obama Civil Rights Division similarly dismissed a Bush-era lawsuit against the state of Missouri for failing to purge registration lists of deceased and no-longer-resident voters as required by the National Voter Registration Act of 1993.26 The Obama administration sought to focus its resources on barriers to voting like voter ID laws, not on cleaning up voter lists.
Some former Bush officials, however, believed that the Justice Department’s failure to pursue the New Black Panther Party case resulted from top Obama administration officials’ ideological belief that civil rights laws only apply to protect members of minority groups from discrimination by whites. Department spokes-woman Tracy Schmaler denied any such motives. She asserted that “the department makes enforcement decisions based on the merits, not the race, gender or ethnicity of any party involved.”27 But an anonymous Justice Department official told the Washington Post that “the Voting Rights Act was passed because people like Bull Connor [a white police commissioner] were hitting people like John Lewis [a black civil rights activist], not the other way around.”28 The Post concluded that the New Black Panther Party case “tapped into deep divisions within the Justice Department that persist today over whether the agency should focus on protecting historically oppressed minorities or enforce laws without regard to race.”29
The Office of Professional Responsibility’s report on the case found that several former and current DOJ attorneys told investigators under oath that some lawyers in the Civil Rights Division don’t believe that the DOJ should bring cases involving white victims of racial discrimination. The report also found that Voting Section lawyers believed that their boss, appointed by President Obama, wanted them to bring only cases protecting members of American minority groups. She phrased this as having the section pursue only “traditional” civil rights enforcement cases. Her employees understood that by “traditional” she meant only cases involving minority victims.30
The boss in question claimed she was misunderstood, and that she was only alluding to a specific section of the Voting Rights Act that required certain states to get Justice Department “preclearance” before they modified their voting rules in a way that could potentially be deemed discriminatory. Since all voting rule changes affect one group or another in different ways, applying this rule to white voters as well as minority voters would require the section to spend significant resources preclearing every voting change in the affected states.
If there was, in fact, a misunderstanding, it was likely because the Obama/Holder Justice Department had provided ample reason to question whether it wanted to apply the law in a racially neutral manner. In addition to dropping most of the New Black Panther Party case, the department canceled an existing investigation into an alleged ballot theft in Noxubee, Mississippi, that benefited an African-American incumbent. Meanwhile, Holder himself made some racially charged comments, including suggesting that the controversy over the New Black Panther Party case demeans “my people,” by which he meant African Americans.31
Meanwhile, the Obama Justice Department resumed civil service hiring for the Civil Rights Division based on illegal ideological criteria. In a 2008 speech to the liberal American Constitution Society, Holder had promised the Justice Department would be “looking for people who share our values,” and that “a substantial number of those people would probably be members of the American Constitution Society.”32 As attorney general, Holder went about finding such people by looking for civil service candidates with a “commitment to civil rights.”33 Commitment to civil rights was in practice interpreted not as a commitment to enforcing the laws on the books, but as a commitment to left-wing political activism, as demonstrated by past work for liberal activist groups.
The result was rather astonishing. During the first two years of the Obama administration, over 60 percent of attorneys hired for civil service positions had liberal entries (such as working for a left-wing activist group) on their resumes and none had conservative entries.34 The Justice Department’s rationale for hiring progressive activist lawyers is that their “traditional civil rights backgrounds” gave them appropriate law-enforcement credentials.35 In fact, few of the lawyers in question had much in the way of law-enforcement experience. Rather, much of their experience was in challenging existing law as insufficiently left-wing and advocating for new or amended laws. Yet, once hired by the Justice Department, they were charged with enforcing the same laws that they had been denouncing in press releases and friend-of-the-court briefs as oppressive, unjust, unfair, and racist.
For example, many attorneys hired by the Justice Department had worked for organizations that opposed any significant constitutional restrictions on government preferences in favor of members of minority groups. By contrast, existing Supreme Court precedent limits such preferences to very narrow circumstances. One top Obama appointee suggested that recent Supreme Court precedent on race preferences was analogous to Dred Scott, a notorious 1857 case that both endorsed nationwide slavery and held that people of African descent had no “rights the white man need respect.”36 Someone who so vehemently disagrees with the current state of the law is not best positioned to enforce it. Meanwhile, even when desperately searching for attorneys to fill new civil service positions, the Justice Department, for reasons it couldn’t explain to investigators from the Office of the Inspector General, failed to contact experienced former Bush administration attorneys who could potentially have been lured back to the department.37
If all that isn’t sufficient evidence to show illegal political bias in hiring in the Obama Justice Department, consider the Civil Rights Division’s nonattorney civil service hires just in the Voting Rights Section. They had worked for left-wing activist groups, including the NAACP, the Stanford Immigrants Rights Project, the Lawyers Committee for Civil Rights Under Law, the American Constitution Society, the Urban Institute, the Asian American Justice Center, the “no human is illegal” campaign, and more.38 It’s hard to think of a good reason why a paralegal or other nonlawyer Civil Rights Division hire needed experience in an activist organization to do his job properly. But providing nonattorney employees at low-paying liberal organizations with government jobs is a tacit way of subsidizing those organizations. It signals potential employees of such organizations that they will have the inside track on higher-paying, more secure government jobs in Democratic administrations.
The Civil Rights Division is not the only highly politicized part of the Justice Department in the Obama administration. The Environment and Natural Resources Division is chock-full of left-wing attorneys.39 Much of the Obama administration’s environmental agenda has been stymied by opposition in Congress, including from Democrats. One work-around the administration hit upon is a tactic called “sue and settle.” The Environment and Natural Resources Division encourages environmental groups to sue the government for purportedly lax interpretations of existing law. The parties then enter a settlement agreement that requires the government to regulate far more stringently than statutes and the formal regulation-writing process would allow. This allows the executive branch to engage in lawmaking without the approval or oversight of Congress or the public.40
Finally, there is the matter of the Justice Department’s refusal to defend the Defense of Marriage Act (DOMA) from constitutional challenge.41 For decades, attorneys general of the United States have taken the position that, regardless of their administration’s own view of a law, “they will not call into question the constitutionality of any federal statute unless the law is so patently unconstitutional that no defense could be mounted in good conscience.”42 The Obama administration officially agrees with that long-standing principle.
In 2011, however, the Obama administration ignored that rule for political reasons. Challenges to DOMA, which defined marriage for federal purposes as consisting of a man and a woman to the exclusion of same-sex couplings, regardless of state law to the contrary, were working their way through the courts. With a tight 2012 reelection battle pending, and gay rights groups clamoring for the administration, which had still not announced its support for same-sex marriage, to show some goodwill, the administration refused to defend DOMA in court.
Attorney General Holder argued that the Justice Department could not in good conscience defend DOMA because there were no legitimate arguments to be made for its constitutionality. That was a rather implausible claim, given that the DOJ had defended DOMA in court just a year earlier. And recall that Holder’s Justice Department had also taken the position that allowing D.C.’s representative in Congress to vote, in blatant violation of an explicit constitutional provision, was nevertheless “defensible.”
The House of Representatives hired its own lawyers to defend DOMA, but the Supreme Court held it unconstitutional in a 5–4 decision. The fact that four of the nine justices thought DOMA to be constitutional shows that DOMA was not, in fact, so patently unconstitutional that one could not defend it in good conscience. As legal scholar Ed Whelan notes, both the Supreme Court majority and dissent criticized Holder for refusing to defend the law. Justice Anthony Kennedy, for the majority, complained that Holder’s “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma” and warned that such behavior “poses grave challenges to the separation of powers.” In his dissent, Justice Antonin Scalia more bluntly opined, “There is no justification for the Justice Department’s abandoning the law in the present case.”43 But there was, of course, a justification, just not a very good one; as has so often been true in the Obama administration, the president and his attorney general were more interested in playing politics and pursuing a progressive ideological agenda than in upholding the rule of law.
