an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
That's a popular defense, of course, in the recent torture and surveillance scandals. But as I noted here a year ago, it was also an excuse offered in the DOJ political hiring affair: Monica Goodling testified that Kyle Sampson had told her that OLC (Dan Levin, in particular) had advised him that Immigration Judges were not subject to civil service protections and thus could be hired on a partisan basis.
Turns out, in this case, it just ain't true: The DOJ Inspector General looked into Sampson's account, and there's nothing to it. See pages 77-81, 117-118 of the Report. There's no evidence that Dan Levin, or Jack Goldsmith, or Ed Whelan (the three heads of the office during the pertinent period), nor any other OLC attorney, ever gave Sampson any such (erroneous) advice. Posted
by Marty Lederman [link]
No, but we've read enough OLC memos to know how such a memo would read, right? Here's an excerpt: --- Article II of the Constitution gives the President the obligation to "take care that the laws be faithfully executed." Any law of Congress purporting to restrict the means by which he chooses, at his sole plenary discretion, to execute the laws (including the personnel through which he chooses to execute them) would therefore be unconstitutional.
Moreover, the Constitution grants Congress the power to "vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." It has no authority to vest the appointment of superior officers elsewhere. Applying the canon of construction expressio unius est exclusio alterius, these explicit textual directives exhaust the Congress's power over Executive Branch personnel matters. Because the Constitution's text refers only to "[superior] officers" and "inferior officers," it leaves appointment of mere "employees" at the sole plenary discretion of the President.
The Civil Service Reform Act would present a serious constitutional question if it were interpreted to limit that discretion. Therefore, we apply the doctrine of constitutional avoidance to read it not to apply to hiring decisions made by the Executive Branch.
Lastly, the 2001 Authorization for Use of Military Force, Pub. L. 107-40 ("AUMF"), grants the President the authority to "use all necessary and appropriate force . . . ." The American Heritage Dictionary defines "force" as "[a] body of persons or other resources organized or available for a certain purpose: a large labor force." The unqualified nature of the authorization ("all necessary and appropriate force") makes clear that this is intended to supersede prior restrictions on the President's hiring ability, to construct and shape the "force" he determines is "necessary and appropriate." Applying the last in time rule, the AUMF therefore impliedly repeals the Civil Service Reform Act to the extent it applies to the Executive. -- Is there anything I'm missing?
So Goodling says OLC told Sampson told her it was OK.
And here's the shocker: that didn't happen. As far as the IG can determine, if Sampson got that idea, it wasn't from OLC. Maybe he made it up. Maybe he said no such thing. Maybe no one said anything of the sort. Regardless, that's not how Goodling got the idea it was OK.
And yet I think we can rule out that she just got the idea in her head one day.
Thus the question becomes: OK, how did Goodling get the idea it was OK? If her claimed source doesn't check out, what source is she covering for?
The question of how much illegality OLC has to answer for remains interesting too, of course. In this case it appears they're off the hook.
That's why I figure there's much more to know about how all this happened. This time I don't figure what we have yet to learn will implicate more fake law in OLC, so if OLC would like to celebrate not practicing fake law, let the celebration begin.