In its first filing defending the Affordable Care Act, the Justice Department questions the plaintiffs' standing to bring suit. The response also argues that the law is within Congress' powers to tax and spend and clearly within congressional prerogative under the Commerce Clause.

The suit, filed in a Michigan federal court by the conservative Thomas Moore Law Center, seeks to enjoin the provision mandating health insurance coverage for individuals from being enforced. The DOJ, noting that the individual mandate does not go into effect until 2014, says that the plaintiffs "demonstrate no current injury, and merely speculate whether the law will harm them once it is in force."

Even if the plaintiffs were found to have standing, the DOJ writes, the suit's likelihood of success is minimal. Echoing points that have been made by constitutional law experts on the legality of the individual health care mandate, Justice Department attorneys cite congressional authority to tax and spend, and under the Commerce Clause, arguing that the Affordable Care Act falls well within Congress' powers under Article I of the Constitution. Arguments to the contrary "are flatly wrong," the DOJ's brief states.

A copy of the Justice Department's filing is below.

Defendant's Response 210cv11156 ED Mich

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By Melanie Sloan, executive director, Citizens for Responsibility and Ethics in Washington (CREW)

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On Tuesday, The Hill reported Senator Harry Reid (D-Nev.) suggested Republican senators using anonymous holds to block executive branch nominations may find themselves referred to the Senate Ethics Committee. My organization, Citizens for Responsibility and Ethics in Washington (CREW), suggested this very course of action back in December, and we applaud Sen. Reid (pictured) for taking the first steps to enforce provisions that should have ended the opaque and undemocratic procedure of secret holds years ago.

In 2007, the newly elected Democratic majority passed the Honest Leadership and Open Government Act (HLOGA), hailed by its supporters as landmark ethics and transparency legislation. Section 512 of HLOGA sought to force senators to reveal themselves when they were "intending to object to a proceeding" - a parliamentary maneuver more commonly known as a "hold." HLOGA did not end the use of holds, but instead forced senators choosing to block an action to place their objection in the Senate calendar next to their name. Unfortunately, the provision did not create a new Senate rule or standing order of the Senate, or include any enforcement mechanism. Rather, members were simply expected to comply and loopholes remained. As a result, CREW's research showed that the procedure outlined under HLOGA was followed only twice since its creation, while senators of both parties continued to place secret holds.

Given that senators had agreed to the change in passing HLOGA, CREW asked the Senate Ethics Committee to find that senators using the secret hold are violating Senate rules by engaging in "improper conduct which may reflect upon the Senate." Not surprisingly, the ethics committee punted and passed on our request, finding it had no jurisdiction over the matter. So the first thing the Senate needs to do is give the Ethics Committee clear authority to enforce the ban against secret holds.

Second, while referring senators who employ secret holds against nominees to the Ethics Committee is a good first step, HLOGA did not limit the secret hold restriction to just executive branch nominees; it applied to all Senate actions. Therefore, any senator who employs a secret hold on any matter should be referred to the Ethics Committee.

The secret hold is an arcane and undemocratic procedure and the American people know it, which is why the Senate banned the practice in the first place. The sooner senators recognize that voters cannot be placated with empty promises of change the sooner they will understand why the Senate is held in such low esteem. As outgoing House Appropriations Chair Rep. David Obey (D-WI) so aptly said in his farewell statement, "there has to be more to life than explaining the ridiculous, accountability destroying rules of the Senate to confused, angry, and frustrated constituents." It is long past time for the Senate to take responsibility for its part in contributing to American cynicism about the government. Ending the use of secret holds is a good place to start.

[picture via reidsenategov]

With many of President Obama's judicial and executive nominations delayed in the Senate, some members of that body are urging reconsideration a rule permitting one delay tactic. The charge is being led by Sen. Claire McCaskill (pictured).

The Hill reports:  

Senators have long been able to block action on any nomination (and sometimes legislation) by placing an anonymous "hold." Twenty Democratic Senators, led by Sen. Claire McCaskill (D-Mo.), are now pushing the Senate to ban that practice.

In a letter to Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), the group, argues that the anonymity of secret holds violates the spirit of democracy.

"While we deeply respect and appreciate the importance of tradition in this institution, we believe the practice of the secret hold has no rightful place in the Senate or in an open and transparent democracy," the letter reads. "When a member of the Senate wishes to hold legislation or a nomination, that Senator owes to this body and, more importantly, to the American public a full explanation. 

[Image via scriptingnews.] 

The influential U.S. Court of Appeals for the D.C. Circuit became the first lower court to apply the Supreme Court's landmark decision in Citizens United v. FEC. In an en banc decision, the court unanimously struck down a limit on donations to independent political groups supporting or opposing candidates for Congress and the presidency. The decision was announced today in SpeechNow.org v. FEC.

Lyle Denniston at SCOTUSblog reports that the opinion indicates a "[w]idening impact of Citizens United":

The SpeechNow ruling significantly broadens the impact of Citizens United, extending its constitutional reasoning from campaign spending to campaign donations.

Although the SpeechNow case involved contributions to advocacy groups, rather than their spending, the Circuit Court found that the Citizens United ruling "resolves this appeal." In an opinion written by Chief Judge David B. Sentelle, the Circuit Court said that the $5,000 annual limit on donations to groups like SpeechNow is unconstitutional. The Court went on to rule that such organizations will have to obey the federal campaign finance law's disclosure and reporting requirements. Those restrictions, however, were not strenuously contested in the case, since SpeechNow's organizers were mainly interested in clearing the way for unlimited donations to their political advocacy campaigns. 

In Citizens United, the Supreme Court invalidated decades of campaign finance reforms, making it easier for corporations to spend freely on electioneering. The decision rankled the public and elected officials, prompting President Obama to dedicate part of his 2010 State of the Union address to critiquing the decision, which he said "will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections." The criticism appeared to rile Justice Samuel Alito at the time, and has since provoked a reply from Chief Justice John Robert. Both Alito and Roberts joined the five-justice majority in Citizens United.

[Image via The Yellow Something, Something.]

 

 

A draft proposal of the Anti-Counterfeiting Trade Agreement (ACTA) has been leaked, and critics are sharpening their attacks on the controversial anti-pirating agreement.

ACTA has long been a subject of criticism. Being negotiated behind closed doors, the multi-national agreement is intended to standardize intellectual property enforcement among participating countries. Critics argue, however, that the secret negotiations shaping ACTA should be made transparent. Leaked reports on the substance of negotiations have also drawn fire.

Today's Washington Post bears an op-ed by Harvard Law professors Lawrence Lessig and Jack Goldsmith who reiterate prior criticisms of both the process producing ACTA and the agreement's substance. Their op-ed also introduces constitutional concerns for how the United States might join the agreement, noting that the administration has suggested enactment without congressional involvement.

"If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives," Lessig and Goldsmith write. "When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied."

"Congress should follow Biden's lead," argue Lessig and Goldsmith.

[Image via Mike Blogs.]

 

 

 

On Capitol Hill today, Republicans invoked what The Wall Street Journal characterizes as "an obscure rule" in which unanimous consent is required for committee activity to proceed, effectively bring all committee hearings to a halt. This included one in the Judiciary Committee, at which two judicial nominations were to be considered.

Judiciary Committee Chair Sen. Patrick Leahy sharply criticized the action in a statement:

Senate Republicans' tactics of obstruction and delay know no limit. They have objected to reasonable timetables to consider President Obama's qualified judicial nominees, and now they are objecting to allowing the Judiciary Committee to conduct hearings in connection with these nominations.

The ranking Republican on the committee Sen. Jeff Sessions had no response.

The Judiciary Committee was scheduled to consider the nominations of Magistrate Kimberley J. Muller, for the Eastern District of California, and Berkeley Law Professor and former ACS board chair Goodwin Liu (pictured), for the U.S. Court of Appeals for the Ninth Circuit. According to the Senate Judiciary Committee's website, the hearing "will be rescheduled at the earliest possible time."

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By Maj. (Ret.) Eric Montalvo, Esq., Partner at Puckett & Faraj, PC, in Washington, D.C. and former Marine Corps Judge Advocate General (JAG). Eric currently specializes in national security law, military criminal law, and military administrative law. He has handled several Military Commission cases including U.S. v. Al Bahlul, U.S. v. Hawsawi (the alleged 9/11 co-conspirator), and the case of the U.S. v. Jawad, fighting for and securing the release of one of the youngest Guantanamo Bay detainees in 2009.

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The Supreme Court on Monday declined to review the D.C. Circuit Court's ruling in Kiyemba V. Obama (Supreme Court docket 09-581). The D.C. Circuit Court held that the judiciary may not review executive branch decisions regarding when or where to transfer detainees that it is prepared to release from Guantanamo Bay. This case is now informally referred to as "Kiyemba II." Ten current Guantanamo detainees who have been cleared for release object to being returned to their country of national origin out of fear or concern for their safety and well-being.

In Kiyemba I, the Court granted certiorari on the question of "whether a federal court exercising habeas jurisdiction has the power to order the release of prisoners held at Guantanamo Bay "where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy." In the vacation and remand to the D.C. Circuit Court the Supreme Court held that "no court has yet ruled in this case in light of the new facts, and we decline to be the first to do so."

The Court's ruling creates uncertainty in the system which is already wrought with indecision and indefinite consternation. The Supreme Court has created an exception to the general rule that a court loses jurisdiction where there is no case or controversy and a court's decision will no longer have an impact on plaintiff. The Court has recognized that some questions may involve proceedings that are frequently repetitive, but come to a conclusion prior to the normal life cycle of litigation effectively depriving the Court of jurisdiction. The Court may assume jurisdiction where there was injury that was "capable of repetition, yet evading review." The classic example of the Court utilizing this exception is in the abortion line cases. These cases present such a circumstance and allow the government to alter the justiciability issue simply by changing the facts in the 9th inning.

One of the ten detainees who brought the suit in Kiyemba II, Algerian national Ahmed Belbacha, was cleared for release over three years ago and has endured over eight years of incarceration in U.S. custody. During his incarceration by the U.S. he was tried in absentia, convicted, and sentenced to 20 years by the Algerian government. He has asserted in filings that he "has been threatened with death by an Islamic terrorist group in Algeria," and the Algerian government views him as a deserter.

If Belbacha had "immigrated" to the United States legally or illegally he could become an "asylum seeker." In lay terms, asylum is legal protection against deportation based on fear of persecution in their home country. Pursuant to the United Nations Convention Relating to the Status of Refugees from 1951, a refugee is a person who owing to a well-founded fear of being persecuted on account of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality, and is unable to or, owing to such fear, is unwilling to avail him/herself of the protection of that country.

Immigration Judges, albeit within the Department of Justice, adjudicate these issues on a regular basis. What the government cleverly accomplished in the case at hand was to provide facts that seemingly render the questions moot or "unripe." The Court is well aware that there will be more detainees undergoing similar issues and it cannot be that three to five years of political and legal wrangling is an acceptable consequence of avoiding what the Court titles as a non-justiciable issue.

In the meanwhile, detainees such as Belbacha have endured captivity aboard Guantanamo for the last eight years fighting for freedom and the opportunity to enjoy that freedom after they are released. The United States has created a probable death sentence for this man after we have deprived him of eight years of his life and "poured salt on the wound."

The Eight Amendment to the Constitution was adopted as part of the Bill of Rights, in 1791. It states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It would appear that releasing Belbacha or any similarly situated detainee back "into the wild" without their say or consideration for their welfare in the face of credible concerns of bodily harm and indefinite incarnation directly upon release after eight years of liberty deprivation clearly violates the Eight Amendment. I use the phrase "into the wild" as we are treating people worse than animals who are rehabilitated to reintegrate into the wild.

Our jurisprudence should flatly reject any decisions which accepts, facilitates or perpetuates indefinite detention. We need to adopt a Donald Trump "your fired" method of adjudication. To enable the government to keep shooting closing-moment three-pointers to avoid judicial scrutiny is a contorted manipulation of our judicial system. Does it really take three years for our government to negotiate the transfer of an individual? The Supreme Court must decide the constitutional issues and let Congress and/or the Executive Branch determine how to fix themselves -- not give them unlimited bites at the rotten apple.

[Image via christopher dune.]

The U.S. Supreme Court passed on a chance to hear the second Kiyemba v. Obama, a case involving four of the Chinese Muslims, or Uighurs, detained at the Guantanamo Bay detention facility. Denying certiorari this morning, the Court let stand a lower court's decision that federal judges have no authority to review the executive branch's determinations where and when to send detainees cleared for release.

The Court previously granted review in Kiyemba I, in which Uighurs challenged their continued detention at Guantanamo despite being cleared for release. Upon news that the executive branch found countries willing to accept each of the Uighur detainees, however, the Court remanded the case to the U.S. Court of Appeals for the D.C. Circuit. In Kiyemba II, non-Uighurs who are also slated for release to countries previously announced by the administration also joined the case.

Among the most promising plaintiffs to join Kiyemba II was Ahmed Belbacha, according to reports. Belbacha, who the executive branch says it will release to his native Algeria, alleges that his life was threatened by terrorists there. He also contends that the Algerian military considers him a desserter, and he was tried and convictied in absentia for terrorism-related charges carrying a 20-year sentence. "Caught between domestic terror groups and a government that has already decreed a harsh sanction for him, Mr. Belbacha cannot safely return to Algeria," his attorneys told a district court earlier this month.  

The Supreme Court's denial of cert. leaves in tact the D.C. Circuit's ruling in favor of executive prerogative. In the words of SCOTUSblog's Lyle Denniston, the cert. denial "marked a significant victory for the federal government."

[Image via ken mccown.]

 

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By Meredith Fuchs. Ms. Fuchs is the General Counsel of the National Security Archive, at George Washington University

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Over the weekend, my organization, the National Security Archive issued a report on FOIA implementation, Sunshine and Shadows: The Clear Obama Message for Freedom of Information.

The purpose of the report was to test the impact of President Obama's first full day issuance of a Memorandum on the Freedom of Information Act (FOIA) and Attorney General Holder's Guidelines on FOIA.

This was the eighth "FOIA Audit" that the Archive has issued since 2003. We use a very specific methodology for the reports. We make FOIA requests to all agencies on the same day asking for the same thing and then report on the results. That data is supplemented by data gleaned from the agencies' own annual reports. So, what we report is what they tell us. This year we added in another statistic that we drew from statements of the Department of Justice which DOJ claimed show that there is an increase in disclosure from agencies. We tested that statistic, however, to also look at what has been denied at agencies.

While our findings showed unevenness in the implementation of the Obama FOIA policies, those findings are mainly a reality check on how difficult it is to shift the course of the ship of state. Indeed, when we ran a similar audit eight years ago to look at implementation of then-Attorney General John Ashcroft's FOIA guidelines, we found very limited impact at the agencies in the short run. Over time, of course, that changed and the Ashcroft policies did impact FOIA processing and release. Moreover, the prior FOIA policy, combined with the many other secrecy policies of the Bush Administration severely interfered with the public's right to information. Thus, to use the metaphor in the title, those were cloudy and dark days for access. Today the challenge of fixing FOIA takes place in the context of the Administration's Open Government Initiative and improved executive orders issued about both the President Records Act and classified national security information. The sun seems to be creeping through the clouds.

The Archive's latest report finds many signs of progress. The message delivered by President Obama is clear - the government belongs to the people and the government should be transparent.

At some agencies this message has been adopted immediately and the agencies have not only changed the tone of their training, but have changed actual practices to reflect the president's message, including not using certain exemptions, documenting why a discretionary exemption is used to deny information, and setting up systems for electronic posting of requested records. Among the agencies that changed their practices are many of the largest - DOD, Commerce, Energy, HHS, Interior, EPA, NRC, Social Security Administration. Still others significantly enhanced their training. Some agencies, however, either responded that they have no records or did not respond to the FOIA request at all. For the most part these were smaller agencies that do not process a significant number of FOIA requests. But, there were some notable exceptions, including the Central Intelligence Agency and the Department of the Treasury.

Looking at whether agencies are now releasing records to the public that would not have been released in the past, i.e., one of the Department of Justice's metrics for improvement, we examined agencies' releases in whole, releases in part, and added an examination of denials in whole. We found that agencies such as the Department of Justice, OMB, and Department of Agriculture were both releasing more and denying less. Some agencies were denying more and releasing less. The vast majority of the agencies had indicators going both ways.

These numbers were not adjusted for quantity of requests processed, which was part of the point of the analysis. Raw trend of information disclosure does not mean that agencies are exercising their discretion to release information that they are permitted to release. Some more analysis is merited, but the report surmises that concrete changes in practices are most likely to make a difference in day to day agency release decisions.

Although many agencies did not yet report concrete changes to the Archive, the report recognized that there is a management challenge associated with changing practices and culture across all federal agencies. Chief FOIA Officer reports required by President Obama that will be made public in the next few weeks are likely to include news about more recent changes that were not captured by the Archive's research, which began in September 2009.

One of the surprises for me was that there are still FOIA requests as old as 18 years pending at agencies (NARA and DOD in particular). I had hoped we would find much shorter ages for the oldest requests. Having said that, although we did not compile data on how many old requests are carried year to year, I understand that that measure of the backlog has reduced significantly. 

Today, President Obama issued a statement for Sunshine Week recommitting to open government. White House Chief of White House Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer recognized and reinforced the principles espoused by the president in his first day Freedom of Information Act Memorandum.

The senior White House leadership directed agencies to update all guidance and training materials to ensure that all personnel involved in the FOIA process are made aware of the president's FOIA policy and to ensure that sufficient resources are committed to FOIA. Yesterday, Attorney General Holder celebrated many successes implementing President Obama's FOIA memorandum and his FOIA Guidelines, including an increase in releases of information by the Department of Justice itself, in a speech at the Department of Justice.

Granted, I have only worked on these issues for seven years, but from my review of FOIA's history, there has never been such a level of interest at the highest levels of the Executive Branch. To me this feels like the start of some sustained sunshine. 

[image via lwv.org]

 

Duquesne University law school professor and interim dean Ken Gormley, who participated in a fall ACS panel discussion focusing on Louis Brandeis' influence on privacy rights, will be in Bethesda, Md., this week to discuss his book, The Death of American Virtue: Clinton vs. Starr. 

The New York Times' Janet Maslin writes of the book, "But by and large Mr. Gormley has packed his narrative with intense, overdue and definitive testimony about the still-surprising investigation of Mr. Clinton's activities spearheaded by Kenneth W. Starr." The Times' Sunday Book Review also featured Gormley's book. 

Visit the Barnes & Noble in Bethesda Thursday, March 18 at 7 p.m. to hear Gormley talk about his work. For more information about the book event visit Barnes & Noble's Web site here.

Video of the panel discussion, "Louis Brandeis and the Development of the Right to Privacy," which Gormley participated, is available here. Also watch video or download a podcast of an ACSblog interview with Gormley.