Justice Watch: An Alliance for Justice Blog

In our own advocacy work, Alliance for Justice has supported public financing legislation at the state and national level for many years. We believe that empowering regular people to participate in political campaigns is not only fundamentally democratic—but also holds the greatest potential for reducing the dominance of wealthy donors and big business in our politics.

That’s why we’re excited to endorse a new legislative proposal—The Government By the People Act (H.R. 20)—that will encourage and leverage the contributions of small donors.

Yesterday, Congressman John Sarbanes, D-Md., and House Leader Nancy Pelosi, D-Calif., along with 129 original co-sponsors, introduced the bill.

Read the full post here

Another judicial vacancy is coming up, but Senators Cornyn and Cruz have shown little urgency in filling the ones that already exist

By Michelle D. Schwartz, Director of Justice Programs

Sen. Ted Cruz

Last week, U.S. District Judge Robert Junell, from the Western District of Texas, announced his plans to take senior status on February 13, 2015.  That’s right, 2015.  As so many federal judges have before him, Judge Junell gave plenty of notice, in order to provide enough time for a replacement to be named before he reduces his caseload.

However, Judge Junell is skeptical that 12-plus months’ notice will be sufficient.  According to Jon Vanderlaan at the Odessa American, “Junell said he’s not fully confident someone will take his position in time for a seamless transition.”

That lack of confidence might be well-placed if Judge Junell had given only a few weeks’ notice.  After all, it does take some time for home-state senators to identify potential nominees and make recommendations to the President, for the White House to vet those potential nominees, and for the Senate confirmation process to play out once nominations are made.  But, again, Judge Junell gave more than a year’s notice—much more than enough time.

So perhaps the concern is that filling the seat won’t be a big priority because the people of West Texas can do without a full-time judge on that bench.  But, with “more than 1,000 criminal defendants in 2013, the most of any judge in the Western District of Texas,” again according to the Odessa American, this bench should not remain empty for long.

How, then, to explain Judge Junell’s concerns?  Read more

By Emily Rooke-Ley
AFJ Outreach Intern

Just over two weeks ago on the morning on Jan. 15, the House Judiciary Committee held a hearing and mark-up on the latest piece of legislation that aims to deny women access to abortion.  Just before the hearing, legislators concerned with women’s access to comprehensive health care held a press conference outside of the committee room.  Rep. Louise Slaughter, D-N.Y., co-chair of the House Pro-Choice Caucus said: “Women are sick and tired of these constant attacks on our constitutionally-protected right to choose, while priorities like equal pay, fair wages and paid family leave go unaddressed.”

The late Rep. Henry Hyde

The so-called “No Taxpayer Funding for Abortion Act,” (HR 7) sponsored by Rep. Chris Smith, R-N.J., would eliminate all federal funding for abortion services.  The Hyde Amendment, first enacted in 1977 and reenacted as a rider every year, has already done just that by prohibiting federal Medicaid funding for abortion. Rep. John Conyers, D-Mich., insisted during Wednesday’s hearing that the bill be called what it really is: a government intrusion that will effectively eliminate health insurance plans that provide abortion coverage.

According to Planned Parenthood Federation of America, HR 7 will ban abortion coverage in private insurance plans (37 million women of reproductive age are covered by private plans), raise taxes on families choosing private insurance plans that include abortion coverage, and raise taxes on small businesses if they offer their employees insurance plans that include abortion coverage. It will do so with only the limited exceptions for some cases of rape, incest, and life of the mother.

The earliest version of what is now HR 7 allowed exceptions only for “forcible” rape.  Another version required the IRS to audit rape victims who claimed a medical expense deduction for abortion to ensure that she was not committing fraud.  Although the final version of the bill dropped such language, its provisions on abortion have not been changed and the bill would, in fact, go further than Hyde ever did.

Congresswomen and pro-choice activists crowded the hallway holding signs reading “Where are the women?”  This refers to the absence of women in the drafting, debate, and mark-up of the bill.  HR7 was drafted by Congressman Chris Smith, R-N.J., the initial House subcommittee was comprised of 12 men, and the full committee includes 35 men and only five women.

Many of those attending the press conference and bill mark-up represented organizations in partnership with the All Above All pro-choice coalition, which includes Alliance for Justice. The coalition strongly opposes  this legislation, which severely limits access to women’s constitutionally-protected right to safe and legal abortion. The full video of the hearing and mark-up is available here.

Fewer than two weeks after the committee hearing and on the eve of President Obama’s State of the Union address, the House voted to pass HR 7. Despite some changes in language—such as the removal of the “rape audit” portion—the bill would still be detrimental to women and families if signed into law.  Fortunately, it has little chance of passing in the Senate, and President Obama has already  said he plans to veto the bill if necessary.

The Pro-Choice Caucus convened Wednesday morning for a press conference with House Minority Leader Nancy Pelosi, expressing their members’ disappointment in the House passage of HR 7. As we reflect on the 41 years that have passed since Roe v. Wade, we must recognize that it is more important now than ever before to be vigilant, to speak out, and to stand up against the relentless attacks on women’s reproductive rights.

Find out more about attempts to roll back reproductive rights in our brief video, Roe at Risk

By Mark Schneider, General Counsel for the International Association of Machinists and Aerospace Workers

•For more analysis of this case – and excerpts from the oral arguments, check out our AFJ Audio Analysis page for this case.

Earlier this week, the U.S. Supreme Court heard argument in Harris v. Quinn, a challenge to an Illinois law permitting public employee home health care workers to be represented for purposes of collective bargaining by a single union, which has the right to collect compulsory fees from all of the workers it is required to represent.  In the state’s view, this unionized home health care system is a more cost-effective alternative than institutionalized care, and by allowing a union to represent the home-based workers based on a majority-rule vote, the state gains by developing a more stable, well-trained, and engaged workforce.  The workers, too, have gained much through this system, notably a substantial increase in wages.  And, the union got to grow its membership, and prove that it could be a responsible partner in improving the lives of the workers it represents and their communities.

Burkean conservatives ought to take comfort in government cooperating with a private association of workers to further the public interest.  The government often works best when it works with groups and associations to advance the public interest.  Rather than police and assess attorney misconduct through a bureaucracy in Washington, for example, it has proven beneficial to work with the various state and local bar associations and let attorneys govern themselves.  For a half century, we have allowed private groups like agricultural cooperatives, lawyer bar associations, and unions to participate in government regulatory programs where the association requires its members to join and pay their fair share of the cost of the program, and the association must represent all in the group fairly.

Libertarian conservatives, however, aren’t particularly comfortable with the idea of even the government assessing compulsory taxes.  They sure as hell don’t approve of private associations doing something similar.  And, when that association is a trade union… Read more

By William Yeomans, 
Fellow in Law and Government at American University
Washington College of Law

Prof. William Yeomans

Most observers came away from the argument in NLRB v. Noel Canning last week convinced that presidential power would suffer a blow in President Obama’s battle with Senate Republicans over recess appointments.  They are almost certainly correct.  But the case suggests three broader points.  First, Republican obstruction in the Senate knows no limits.  By resisting even the least controversial nominees and using obstruction of nominees with the intent to interfere with the basic functioning of government, Republicans forced the President to act.  Second, the specific confrontation that led to the case could have been—and should have been—avoided by stronger leadership from the Senate majority and the White House.  And, finally, the country is increasingly handicapped by a slavish reverence for the ambiguous words of the Founding Fathers.  As a result, the Supreme Court is poised to wade into the middle of a political dispute between the political branches and to reject 200 years of history—during which a functional and practical understanding of the recess appointment power prevailed.

The case arose from the recess appointments of three members of the National Labor Relations Board (NLRB) on January 6, 2012.  The appointments were the culmination of a long stalemate over NLRB appointments that threatened to leave the NLRB without a three-member quorum to conduct business.  The disabling of the NLRB had long been a dream of Republicans, who couldn’t abide the forum that allowed enforcement of the rights of workers, but could never muster the votes to shut it down.  To thwart the President’s ability to make recess appointments, the Republican House refused to assent to the adjournment of the Senate in December 2011.  Because the Constitution does not allow adjournments longer than three days without the assent of the other House, the Senate was forced to hold pro forma sessions every three days through the recess.  Before doing so, it adopted a resolution stating that it would conduct no business.  The President was fully justified in concluding that the Senate was unavailable to process nominations and, therefore, for all relevant purposes, was in recess.

President Obama made the appointments to keep the NLRB functioning.  Notably, President Obama has made far fewer recess appointments than his predecessors.  President Clinton made 139 and President George W. Bush made 171, but by January 2012 Obama had made only 32.

Recess-appointed NLRB members subsequently voted against Noel Canning, which sought to deny a pay raise in a contract negotiated with its employees.  Noel Canning appealed to the D.C. Circuit, where three conservative Republican appointees ruled in its favor, issuing a stunning decision rejecting longstanding historical practice and the consistent interpretation of the recess appointment clause of the Constitution.  The court held that the clause permits the president to fill vacancies only during the recess between sessions of Congress and not during the frequent intra-session recesses.  It also held that he could fill only vacancies that arose during the recess.  Both interpretations flew in the face of longstanding interpretation of the clause by presidents dating back to the 19^th century, as well as modern opinions of the Department of Justice’s Office of Legal Counsel.

The language of the recess appointments clause was first called ambiguous by Thomas Jefferson.  It states: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate . . . .”  The text could be read as the D.C. Circuit read it or it could be read to mean that the President has power during the recess of the Senate (whenever the Senate is in recess) to fill up all vacancies that may happen (regardless of when they happen).  The latter reading has formed the basis for hundreds of recess appointments over the past 200 years.

It is true that the original purpose of the constitutional provision was to allow the President to keep the government staffed during the long recesses common when legislators traveled by live horsepower.  They generally convened, stayed in session until their business was done and left.  There were no intra-session recesses and it was difficult to reconvene.  By contrast, today Congress stays in session nearly year round, but leaves for frequent recesses and can return from any part of the country within hours.  The President no longer needs to wait long periods before Congress is able to consider his nominees.  On the other hand, in a country of over 300 million people that depends heavily on a functioning federal government, it is more important than ever for the government to be staffed.

As polarization and Senate obstruction have increased, the recess appointment power has morphed from a tool to overcome long distances and Senate absence into a tool for Presidents to overcome partisan obstruction.  It has become a practical remedy for dysfunction.  The jostling between the President and the Senate over the limits of the power presents a classic political dispute that the political branches are fully capable of working out without textual reinterpretation through court intervention.

Unfortunately, the Court cannot duck the issue now because scores of NLRB decisions may be at stake.  The case could have been avoided, however, if Senate Democrats had moved sooner to institute rules reform that would have prevented Republicans from filibustering the NLRB appointments.  Both Senate Majority Leader Harry Reid and the President were far too slow in recognizing the full depth and harm of Republican obstruction.  Because the 60-vote threshold finally has been eliminated for executive branch nominees, the outcome of this case has little immediate consequence.  So long as Democrats control the Senate and the majority rules, the President will have little need to make recess appointments.

The recess appointment power was created as a practical remedy to keep the federal government functioning when the Senate couldn’t act.  That remains its function today, even though the reason the Senate can’t act has changed.  The Court should reject the formalism of the D.C. Circuit and honor the President’s appointments.  To do otherwise will exhibit a harmful reverence for the actions of men who over 200 years ago wrote an ambiguous provision addressing a world that no longer exists.

Read more about the NLRB and Republican obstruction