Recess Is Never Long Enough
California Lawyer

Recess Is Never Long Enough

Campaign spending. Religious freedom. And a whole lot more.

September 2014

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The proverbial question asked of schoolchildren is: What's your favorite class? The routine answer of the least promising students is always the same: recess. We now know where these young "scholars" landed - in the 113th "do nothing" Congress, assailed for being the least productive legislative group in anyone's memory.

Theoretically, conscientious citizens can check a nonperforming Congress by registering to vote, and then voting. It is not a perfect system. The range of citizens who are practically eligible for public office declines every time the U.S. Supreme

Court resolves to repeat the silly notion that money is speech; the corollary being that as speech cannot be censored, the money spent on it cannot be meaningfully limited. (McCutcheon v. FEC, 134 S.Ct. 1434 (2014).) How long must we maintain the pretense that people dependent on millions of dollars for a congressional seat just ignore those Gucci-shoe-wearing K Street lobbyists who arranged all that "independent" spending in their behalf?

Bankrolled into our nation's capital or not, it should be possible for these "(s)elected" representatives to get down to work, setting deadlines for legislative enactment, holding oversight, budgetary, and reform hearings, and giving the executive specific delegations of authority beyond just regulation "in the public interest." And under the Constitution, it is preferable if the Senate consistently gives its "advice and consent" as an actual thumbs up or down, rather than defeating nominees by ignoring them.

So how are the Constitution's three coequal branches doing? The Supreme Court is doing very well. And the president and the Congress? Well, did I mention the Supreme Court is doing very well? Like a spoiled child inconsolable over not getting his or her way, Congress keeps trying to repeal some or all of Obamacare - ironically competing with the Obama administration itself, which keeps discovering implied executive authority to suspend parts of the very program it fought for. To be fair, millions previously lacking insurance now have it and the House GOP still lacks an alternative, though you might think taking on the price-fixing that keeps medical costs soaring would be a good place to start looking (except for the unhappiness it would breed on K Street, of course.)

Meanwhile, Pope Francis has emerged onto the public scene. Far more popular than anyone in either political party, Francis accepts us on our own imperfect terms and urges us to look after the social justice needs of the poor - a category to which an increasing number of previously middle-class, but now long-term unemployed, American citizens feel like they belong. If not for the Schwarzenegger problem (no, not that one), Francis could run for president. He unquestionably would keep us from repeating the costly, indeed profoundly tragic, errors of Iraq, Afghanistan, Libya, and other Points International, and he may be the only figure capable of calling out people of all faiths to reject radical fundamentalism of any sort for its unwillingness to accept that all life is precious.

Is all this just a digression from the Supreme Court's work from the last term? A little, perhaps, but reflecting on the justices' questions during this most recent term, as well as their resulting opinions, reveals how the divisions evident in the larger culture play out in specie at the Court. Nevertheless, each case also has its own history and doctrinal significance, and to that end a few salient particulars bear mention.

In the 2013 term's "big" case, commonly known to the public as Hobby Lobby, Justice Samuel A. Alito Jr., writing for a 5-4 majority, found that the Religious Freedom Restoration Act (RFRA) is designed to protect the religious liberty of "persons," and it doesn't matter whether the individuals are expressing those beliefs as individuals outside or inside a private, closely held corporation. (Burwell v. Hobby Lobby Stores, Inc. (134 S.Ct. 2751 (2014).) The result? That the evangelical Christians selling arts and craft supplies at Hobby Lobby don't have to facilitate access to contraceptives if to do so would be contrary to the teachings of their church. Of course, the statute doesn't preclude the government from getting those contraceptives into the hands of the employees by other means, and Justice Alito believes that awarding this exemption will not lead to broader claims of exemption from, for example, employment discrimination and other generally applicable laws unrelated to contraception. It's not clear why not, but the differentiation is more than likely to arise in making the two inquiries called for under RFRA: Is the law a substantial burden? And does the law accomplish a compelling objective in the least burdensome fashion?

Exempting the Hobby Lobby chain from dispensing contraceptives is one thing, but an excuse to ignore other laws (such as Title VII) on religious grounds - in effect a license to discriminate - is quite another. So, too, the Court should have an easier time differentiating the treatment of publicly traded companies from privately held ones, and the high court says it cannot envision for practical reasons a publicly traded company claim succeeding. How that works out in the real world may well be the subject of future litigation.

The Court's recess appointments decision takes second position in the highlight reel. (NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).) For the past six years, some Tea Partiers in and out of Congress have had enormous difficulty accepting the fact that Barack Obama is actually president. This disbelief has found a constitutional home in the argument of House Speaker John Boehner and others that the president hasn't lived up to the constitutional promise to "take care" that the laws are faithfully executed. Of course, there is little overt acknowledgement that when the Senate fails to act - up or down - on presidential nominees, it naturally invites the president to explore whether there is an alternative legal means to administer the law.

Boehner points to Noel Canning as a slap on the wrist for the president; it is that, but the only mark it is likely to leave is a judicial affirmation of more than two centuries of legal practice giving the president ample, but not unlimited, recess appointment power - far more than the lower court gave following a strict textualist interpretation. A unanimous Court found that while the clause might be argued to apply only to inter-session vacancies (between the two formal years of a congressional term) and then only to those vacancies that arose during a recess itself, the Court, per Justice Stephen G. Breyer, found these limitations not to have been generally observed over the life of the nation. On the other hand, he wrote, a "recess" was historically more than three days. Ten days will do the trick. Fair enough, but the Court was more gullible than it needed to be when it accepted so-called pro forma sessions as signifying that the Senate was on duty and capable of handling business. The pro-forma sessions were typically under one minute, and if a quorum call was made it likely could not have been met. President Obama lost this battle, but on terms that awarded him and his successors the war.

In Schuette v. Coalition to Defend Affirmative Action (134 S.Ct. 1623 (2014)), the Court held by a 6-2 margin (main opinion by Justice Anthony M. Kennedy) that affirmative action designed to achieve racial diversity in education could be placed off-limits by voter initiative. Chief Justice John G. Roberts Jr. concurred and was joined by Justice Clarence Thomas, who saw no immediate need for Congress to embed racial preference in the law. With Justice Elena Kagan recused, it was left to Justices Sonia Sotomayor and Ruth Bader Ginsburg to argue in dissent that equal protection trumps democracy and voters cannot use their vote to disregard a bedrock constitutional principle. And, of course, that's the rub: What is bedrock antidiscrimination in dissent is the soft, shifting sands of optional preference for the plurality and concurrence.

Sharing a bit of the last-day spotlight was another major 5-4 decision in a case sure to affect labor unions all across the country. In Harris v. Quinn (134 S.Ct. 2618 (2014)), the Court fashioned a category of partial public employees who could not be required to pay union dues to a public employee union. Prior decisions had established that a nonmember could be compelled to pay the proportionate part of union dues devoted to terms of employment or collective bargaining. But home health care workers - who were the plaintiffs in Harris - are as a practical matter under the immediate direction of their patients, and thus not really free-riding, said the Court in another majority opinion written by Justice Alito. Sure to be troubling to labor advocates was his historical review - and rebuke - of precedents that established the free rider rules in the first place.

Moving from a caustic review of time-honored precedent to the ongoing evolution of cyberspace, the Court confronted an innovative way to watch television. In ABC, Inc. v. Aereo, Inc. (134 S.Ct. 2498 (2014)), Justice Breyer, writing for a majority of six, found that the virtually simultaneous Internet rebroadcast of over-the-air television programming to subscribers requires payment of a copyright royalty. The fact that the programming was not accessed until an individual subscriber chose it and was sent to each subscriber separately over tiny antennas (nothing said about little green men) did not take the transmission outside the compensation requirements of the 1976 Copyright Act. Within days of the ruling, Aereo suspended operations, but said it would be back.

The Court unanimously found that police need a warrant to search a cell phone of a person under arrest, absent exigent circumstances like the phone being used as a trigger for an explosive device. (Riley v. California, 134 S.Ct. 2473 (2014).) What's that sound? Is it the self-gulaged voice of Edward Snowden drifting across the Siberian plain shouting, "Hooray for privacy!"

As the Roberts Court neither upheld a progressive health reform by novel theory nor indirectly gave support to "same-sex" marital bliss, the press gave it less adulation this year than last. That's a tad unfair. This was in some ways a more important term for the practical application and explanation of precedent as informed by historical practice. And some reaffirmations, like that of the permissibility of legislative prayer (Town of Greece v. Galloway, 134 S.Ct. 1811 (2014)), were downright significant, clarifying that the establishment clause is not intended to be a device for excluding religious reference, even if the reference is predominantly of one flavor.

In a world beset by unpredictable terror, it's rather comforting to know we still have a prayer.

Douglas W. Kmiec is a former U.S. Ambassador to Malta and Caruso Family Chair in Constitutional Law & Human Rights at Pepperdine University.

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