PEOPLE FOR BLOG

Two weeks ago, on January 25th, 2013, a panel of the United States Circuit Court of Appeals for the D.C. Circuit, consisting of three judges appointed by Republican presidents, unanimously invalidated a decision by the National Labor Relations Board. In Noel Canning v. N.L.R.B., the D.C. Circuit held that the Board did not have a sufficient number of members, or quorum, to make binding decisions because three of the five Board members were appointed through an improper use of the Constitution's Recess Appointments Clause. This decision calls into question many of the NLRB's actions since the three recess appointments were made last year.

Although the decision by the D.C. Circuit was specific to the NLRB, the rationale for the decision, if applied to other recess appointments, could result in chaos throughout the federal government. Several commentators have noted that decisions issued by the Consumer Financial Protection Bureau over the last year could also be subject to invalidation, since Director Richard Cordray was recess appointed at the same time as the NLRB appointees.

Norman Ornstein of the American Enterprise Institute lambasted the D.C. Circuit's ruling as "a remarkable exercise of judicial overreach and arrogance." Ornstein highlighted the difference between President Obama's use of recess appointments from that of his predecessors:

I am not a fan of excessive use of recess appointments, especially when they are made to avoid a major controversy or the simple inconvenience of a possible negative vote in the Senate. But those kinds of recess appointments were made more frequently in the Reagan, Clinton and George W. Bush years . . . . Our current president has issued few recess appointments and did so only when faced with unprecedented filibusters against qualified and widely admired nominees who were opposed because Republicans wanted to emasculate their agencies in violation of common practice and the fiduciary duty of lawmakers to allow laws to be administered and implemented.

A report by the Congressional Research Service released earlier this week found that since January 1981, hundreds of recess appointments by Presidents Ronald Reagan (232), George H. W. Bush (78), Bill Clinton (139), George W. Bush (171), and Barack Obama (32) could have been deemed improper under Noel Canning's reasoning. In total, the report found that least 652 recess appointments were either made outside the narrow window the Court defined for making recess appointments or were made in a recess in which the vacancy did not occur—neither of which would be allowed under the judges' ruling.

In 2004, President George W. Bush made recess appointments of two controversial judges to federal circuit courts: Charles Pickering to the Fifth Circuit and William Pryor to the Eleventh Circuit. Since these recess appointments occurred long after the Senate session in which the vacancy occurred, at least two dozen judicial opinions authored by these judges could be vulnerable to invalidation were Noel Canning applied.

The NLRB can still request a rehearing en banc from the D.C. Circuit or, more likely, appeal to the Supreme Court. If that's the case, the Court is likely to consider the question, not only because of the implication for the separation of powers, but because the Eleventh Circuit interpreted the Recess Appointments Clause differently in a 2005 case. In addition, challenges to President Obama's recess NLRB appointments are still pending in other circuits. The NLRB's Chairman, Mark Gaston Pearce, has remarked that the Board will continue its work while the litigation continues. But until we have a final decision on the matter, a pall has been cast upon all recess appointments and the decisions made by such appointees.

People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics is grounded in our commitment to religious liberty and church-state separation, and in the recognition that fundamental constitutional values sometimes come into creative tension.  Where to draw the lines in any particular situation can be a challenge, and even people who generally agree on constitutional principles may disagree about how they should apply on a given policy question. Nothing demonstrates this complexity more than the Obama administration’s efforts to ensure that American women have access to contraception and reproductive health services while addressing objections that such requirements would violate the conscience of some religious employers.

Religious Right groups and their allies at the U.S. Conference of Catholic Bishops have for months been portraying the Obama administration’s proposed rules requiring insurance coverage of contraception as totalitarian threats to religious liberty, even after the administration adjusted its initial proposal to address those concerns.  Some Religious Right leaders are sticking with their ludicrous “tyranny” message even after the Obama administration today released a further revision that broadens the number of religious groups that will be exempt from new requirements while still guaranteeing women access to contraception.

In describing the policy proposal, HHS Deputy Director of Policy and Regulation Chiquita Brooks-LaSure told reporters, “No nonprofit religious institution will be forced to pay for or provide contraceptive coverage, and churches and houses of worship are specifically exempt.” Under the plan, women who work for such organizations would have access to no-cost contraception coverage through other channels.

Here’s where it gets interesting: The new proposal won praise both from Planned Parenthood and NARAL Pro-Choice America – and from right-wing ideologue Bill Donohue of the Catholic League, who called it “a sign of goodwill by the Obama administration toward the Catholic community.”

In contrast, the proposal was slammed by the far-right Family Research Council and Concerned Women for America – and by Catholics for Choice, which said, “While protecting contraceptive access under the ACA is a win for women, the administration’s caving in to lobbying from conservative religious pressure groups is a loss for everyone.” Catholics for Choice warned that a broadened exemption for religious groups “gives religious extremists carte blanche to trump the rights of others” and that women working at Catholic organizations “are wondering whether they’ll be able to get the same coverage as millions of other women, or if their healthcare just isn’t as important to the president as their bosses’ beliefs about sex and reproduction.”

James Salt, executive director of Catholics United, portrayed the approach as a win-win. “As Catholics United said from the very beginning, reasonable people knew it was right to be patient and hopeful that all sides could come together to solve this complex issue. The White House deserves praise in alleviating the Church’s concerns.”

Leading advocates for women’s heath praised the new approach.  Cecile Richards of Planned Parenthood said the group would be taking a look at the details, but said “This policy makes it clear that your boss does not get to decide whether you can have birth control.” A statement from NARAL Pro-Choice America said the group“is optimistic that these new draft regulations will make near-universal contraceptive coverage a reality.”

Meanwhile, anti-choice advocates that have been pushing for rules that would exempt even individual business owners who have objections to providing contraceptive coverage for their employees complained that the new exemption would not extend to private businesses.

Concerned Women for America President Penny Nance said the new rules show Obama’s “intent to trample the religious liberties of Americans” and said, “When religious groups and individual Americans are forced to deny their deeply held religious convictions, it is not called “balance,” it’s called “tyranny.” The Family Research Council repeated Religious Right characterizations of the previous accommodation as an “accounting gimmick.”

People For the American Way believes that the government has a compelling interest in ensuring that women have access to family planning services. Indeed, Dr. Linda Rosentock, dean of the UCLA's school of public health and a member of the Institute of Medicine committee that was part of the review process on the HHS regulations, testified last year that the Centers for Disease Control has ranked family planning as one of the major public health achievements of the 20th Century.

People For the American Way is also deeply concerned about the efforts by  Religious Right groups and its conservative Catholic allies to re-define “religious liberty” in unprecedented ways that would allow groups to take taxpayer dollars without abiding by reasonable regulations such as anti-discrimination requirements – and to allow private employers and others to claim exemption from all kinds of laws based on “religious” or “moral grounds.”

In this case, we believe the Obama administration has acted in good faith to promote the nation’s public health interests while addressing concerns that those policies might burden religious liberty.  Our courts have long recognized that religious liberty, like the freedom of speech, is not absolute, and that policymakers must often balance competing interests. That is what the administration has done.

The White House announced two new federal appeals court nominees today, Jane Kelly of Iowa to serve on the Eighth Circuit Court of Appeals and Gregory Alan Phillips of Wyoming to serve on the Tenth Circuit Court of Appeals.

Kelly’s nomination is notable for a number of reasons. If confirmed, she will become only the second woman ever to serve on the Eight Circuit Court of Appeals, which oversees seven Midwestern states, and the first from Iowa. She would also help to bring a greater diversity of professional backgrounds to the federal bench, coming to the position after a career as a highly-regarded federal public defender.

Kelly’s nomination underscores the Obama administration’s remarkable success in bringing a diversity of voices to the federal bench. A record 41 percent of President Obama’s confirmed nominees have been women and 36 percent have been people of color. In addition, Obama has nominated more openly gay federal judges than all previous presidents combined. Despite the Senate GOP’s routine stalling of the president’s nominees, he has succeeded in bringing unprecedented gender and racial diversity to the federal bench.

Both Kelly and Phillips have been nominated to vacancies that have not yet opened up (Kelly’s vacancy opens tomorrow and Phillips’ in April). If the Senate confirms them quickly it will avoid adding two more vacancies to an already over-burdened federal court system. Promptly filling the 10th Circuit vacancy  is especially critical since the 12-judge Tenth Circuit  is on track to have vacancies in one third of its seats. A nominee for one of the three current vacancies on the circuit, Robert Bacharach of Oklahoma, has been waiting over seven months for a Senate vote, despite strong support from his two home-state Republican senators.

This weekend People For the American Way Foundation’s Young People For Program held its 2013 National Summit in Washington, DC.  Attended by 117 young leaders from 64 different universities, this year’s Summit – “Creating Change that Lasts” – was a smashing success. 

Student leaders attended workshops on topics ranging from budgeting to media outreach to succession planning. In addition to the 2013 student leaders, nearly fifty alumni from past years returned to support the weekend’s events.  Presidential Medal of Freedom award recipient Dolores Huerta, women's rights advocate Sandra Fluke, and associate director of the White House Office of Public Engagement Ronnie Cho all joined as guest speakers.
 

Earlier today, the DC Circuit issued a decision in case challenging President Obama's recess appointments of three of the five members of the National Labor Relations Board. This is one of several lawsuits challenging these recess appointments, as well as that of Richard Cordray to lead the Consumer Financial Protection Board. While much of the focus will be on the fact that the court ruled against President Obama, this is just one part of a much larger picture: None of this litigation would be occurring but for nonstop and unprecedented obstructionism.

The president had made nominations to the NLRB in early 2011. But Senate Republicans prevented the Senate from holding yes-or-no confirmation votes, which meant that beginning last January, the NLRB would no longer have enough members to have a quorum. In other words, Republicans – who did not have the votes to change our federal labor laws legislatively – nevertheless could undermine an important agency dedicated to protecting the rights of labor. All they had to do was prevent the Senate from doing its job.

In the case of Richard Cordray, Republicans sought to accomplish through obstruction what they had failed to do legislatively. They opposed the creation of a strong Consumer Financial Protection Board during the first years of Obama's presidency, but they lost that battle. The Board was created, but it could not perform many of its vital consumer protection responsibilities without a director. Senate Republicans admitted that they had no problem at all with Richard Cordray. They simply refused to confirm him because they opposed the very existence of the Board he was asked by the president to run. As long as they could keep him off the Board, consumers would remain unprotected by many aspects of the new reform law.

The Senate should have been able to vote on all these confirmations, both to the NLRB and to the CFPB. But Senate Republicans chose to prevent those votes as part of their overall strategy of obstructing anything or anyone supported by President Obama. That harmful sabotage of one of the Senate's basic responsibilities is what led to the recess appointments.

It is worth noting that yesterday, the president announced that he will renominate Cordray. Republicans should not repeat the mistakes of the past: Whether they support him or not, they should allow the CFPB to do its job. And that can only happen if they allow a confirmation vote to occur.

It’s been less than three months since the presidential election, but GOP leaders unhappy with November’s results are already developing a multi-state plan that would further disenfranchise voters in their quest to achieve victory in 2016. On Wednesday, Republican state senators in Virginia cleared the first hurdle in their push to fundamentally change how state Electoral College votes are allocated. The Associated Press reports that under the proposed bill, Virginia would:

[A]pportion electors according to which presidential candidate carries each of the state’s 11 congressional districts. The candidate winning the majority of districts would receive the two electoral votes not tied to congressional districts.

If this bill had been in effect in 2012, Mitt Romney would have walked away with 9 of Virginia’s 13 electoral votes, despite losing the popular vote in the state by nearly 150,000 ballots and four percentage points.

These Republican state senators, who are already under fire for their surprise redistricting scheme on Martin Luther King Day, are no strangers to cutting corners in their drive for political power. Alex Pareene at Salon points out a major motivation behind the plan:

You can see why they like this plan: It is effectively the same thing as mass disenfranchisement of minorities, but it doesn’t look as awful and Jim Crow-y. Instead of trying to take votes away from black and poor and Hispanic people — which led to some bad press and a bunch of lawsuits — these new proposals simply ensure that the votes of rural white people will count more…Electoral vote-rigging plans show a Republican Party that is finally acknowledging the reality that a majority of Americans don’t subscribe to its brand of conservatism.

Yet not all Republicans are jumping on board with these new pushes. In Pennsylvania, where a similar bill was proposed in 2011 and looks to be reintroduced later this year, some GOP officials worry that the plan could backfire. Pennsylvania Republican Party Chairman Rob Gleason, for example, is not sold on the idea:

“I was against it last year, and I am still not convinced it is the way to go. It puts a lot more pressure on the Congress members and could hurt their efforts to hold their seats,” said Gleason, an RNC member, here.

Commentators, such as Jamelle Bouie at American Prospect, see the potential massive political backlash against this electoral system rigging as the real thing the GOP needs be aware of. Bouie says:

[I]t tells you something important about the current Republican Party that—when it comes to winning elections—it’s more interested in changing the game than changing its policies.