As you all know, the Independent Scholars' Evenings  are dedicated to promote and support the work of area Independent Scholars. Held each Thursday at 7.00 pm during a shortened academic school year, this year we are opening the spring session earlier than usual. There is no snow and the temperatures are warm enough for our regular evening sessions.

Should the weather change, of course we may resume the winter break.

Special documentary:

THRIVE.
On
Jan 12 th 2012
At
7.00 pm

THRIVE is an unconventional documentary that lifts the veil on what's REALLY going on in our world by following the money upstream -- uncovering the global consolidation of power in nearly every aspect of our lives. Weaving together breakthroughs in science, consciousness and activism, THRIVE offers real solutions, empowering us with unprecedented and bold strategies for reclaiming our lives and our future. After the presentation there will be critical analysis of the movie within the group, facilitated by Independent Scholar Michael Grady.

Please attend.  Please feel free to forward this email to your network.
These Inidependent Scholars' Evenings we sponsored by The Institute for Cultural and Healing Traditions, Ltd. a 501(c) 3 at State and Federal levels since 1996.

Please visit our website www.qcinstitute.org

Looking forward to meeting you at the ISE

Baldwin City, Kan. - More than 700 undergraduate, graduate and nursing students at Baker University received their degrees during commencement ceremonies Dec. 17-18 at the Collins Center.  Among the graduates is Kelsey Jurkowski of Bettendorf, Iowa with a Master of Business Administration.

Baker, the first university in Kansas, has been listed among the top schools in the Midwest in the annual college rankings by U.S. News & World Report, and selected as a top school in the Midwest by The Princeton Review. Baker has been named one of the top 100 Best Values in Private Universities by Kiplinger's Personal for combining outstanding quality with affordability.

The University serves nearly 4,000 students through the College of Arts and Sciences and School of Education undergraduate programs in Baldwin City; the School of Nursing in Topeka; the School of Professional and Graduate Studies in Overland Park, Kan.; Topeka, Kan.; Wichita, Kan.; and Kansas City, Mo.; Lee's Summit, Mo.; and the School of Education in Overland Park.

Friday, January 6, 2012

Senator Chuck Grassley today said that a draft copy of a report he requested from the Department of Homeland Security Inspector General's office confirmed the accounts he heard from whistleblowers about the undue pressure placed on Immigration Service Officers to approve immigration benefits.

Here is Grassley's statement.  A copy of Grassley's request to the Inspector General, as well as letters to Citizenship and Immigration Services Director Alejandro Mayorkas and Department of Homeland Security Secretary Janet Napolitano can be found here.

"Whistleblowers have been complaining for several years that leadership in Washington, D.C. and immediate supervisors were placing inappropriate pressure on immigration adjudicators to simply find a way to approve benefits.  This 'Get to yes' attitude doesn't serve the American people who expect a thorough and complete analysis.  When a quarter of the immigration service officers felt pressure to approve questionable applications, and 90 percent of respondents felt they didn't have sufficient time to complete interviews of those who seek benefits, there are serious and widespread problems that need to be addressed by the department.  This comes down to the safety and security of the American people, which should not be compromised by any means.

"The Inspector General took to heart the concerns he heard from Immigration Service Officers, and he made some serious and thoughtful recommendations.  I'm particularly interested in the implementation of recommendations by the Inspector General to develop standards to permit more time for an adjudicator's review of case files, develop a policy to establish limitations for managers and attorneys when they intervene in the adjudication of specific cases, and issue policy that ends any informal appeals process and the special review of denied cases.  These get at the heart of the whistleblowers' allegations, and would go a long way to changing the 'Get to yes' culture that prevails at the agency."

Friday, January 6, 2012

Senators Press Administration on Ignoring 90 Years of Legal Advice from Justice Department

 

WASHINGTON - Senate Judiciary Committee Ranking Member Chuck Grassley is leading Republican members of the Senate Judiciary Committee in questioning the administration's decision to ignore more than 90 years of legal precedent in making four controversial recess appointments while the Senate remained in session.

The members argue that the Justice Department, including the Office of Legal Counsel, has clearly said that a congressional recess must be longer than three days - and perhaps at least as long as ten? in order for a recess appointment to be constitutional.  This position has become the stated position of the executive branch, in cases before the Supreme Court and other legal filings, regarding the required length of time for a recess in order for the President to make a recess appointment.

"The Justice Department and the White House owe it to the American people to provide a clear understanding of the process that transpired and the rationale it used to circumvent the checks and balances promised by the Constitution," Grassley said.  "Overturning 90 years of historical precedent is a major shift in policy that should not be done in a legal opinion made behind closed doors hidden from public scrutiny."

In their letter, the members wrote that they were, "Seeking information about what role, if any, the Department or OLC (Office of Legal Counsel) played in developing, formulating, or advising the White House on the decision to make these recess appointments.  Further, we want to know whether the Department has formally revised or amended past opinions issued by the Department on this matter."

The letter continued to explain that the questions were necessary, "Given the Department's historical position on this issue and the President's unprecedented decision to unilaterally reject the years of Department precedent and Executive Branch practice."

The letter was signed by Senate Judiciary Committee members Grassley, Orrin Hatch of Utah, Jon Kyl of Arizona, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Mike Lee of Utah and Tom Coburn of Oklahoma.

Here's a copy of the text of the letter.  A signed copy of the letter can be found here.

 

January 6, 2012

Via Electronic Transmission

The Honorable Eric H. Holder, Jr.

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

 

Dear Attorney General Holder:

On Wednesday, President Obama deviated from over 90 years of precedent established by the Department of Justice (Department), and the Department's Office of Legal Counsel (OLC), by recess appointing four individuals to posts in the Administration, namely Richard Cordray as the director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board, despite the fact that the Senate has not adjourned under the terms of a concurrent resolution passed by Congress.  This action was allegedly based upon legal advice provided to the President by the Office of White House Counsel.  We write today seeking information about what role, if any, the Department or OLC played in developing, formulating, or advising the White House on the decision to make these recess appointments.  Further, we want to know whether the Department has formally revised or amended past opinions issued by the Department on this matter.

 

In 1921, Attorney General Daugherty issued an opinion to the President regarding recess appointments and the length of recess required for the President to make an appointment under Article II Section 2 of the U.S. Constitution.  The Attorney General opined that "no one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment [of 2 days] is taken.  Nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution."[1] The reasoning of the 1921 opinion was given affirmative recognition in subsequent opinions issued by the Department, including opinions issued in 1960,[2] 1992,[3] and 2001.[4]

 

The Department has also weighed in on the applicable time period for recess appointments in legal filings in federal courts.  In 1993, the Department filed a brief in the federal district court for the District of Columbia arguing, "If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives."[5] Additionally, the Department, via the Office of the Solicitor General, argued in a 2004 brief to the Supreme Court, "To this day, official congressional documents define a 'recess' as 'any period of three or more complete days?excluding Sundays?when either the House of Representatives or the Senate is not in session."[6] This exact argument was also filed by the Solicitor General in another case during 2004.[7] Most recently, the Deputy Solicitor General argued before the Supreme Court in 2010 that "the recess appointment power can work in - in a recess.  I think our office has opined the recess has to be longer than 3 days."[8]

 

Taken together, these authorities by the Department clearly indicate the view that a congressional recess must be longer than three days - and perhaps at least as long as ten[9]? in order for a recess appointment to be constitutional.  These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.

 

Given the Department's historical position on this issue and the President's unprecedented decision to unilaterally reject the years of Department precedent and Executive Branch practice, we ask that you provide responses to the following questions:

 

(1)   Was the Department asked to provide legal advice to the President regarding the decision to issue recess appointments of Cordray, Block, Flynn, and Griffin?  If so, was a formal opinion from the Department prepared?  If so, which office at the Department prepared the advice?  If such advice was prepared, when will it to be made public?

 

(2)   If a formal opinion was prepared, provide a copy of that opinion.

 

(3)   Attorney General Opinions, such as the one offered in 1921, are essentially the forerunner to opinions that today come from the Office of Legal Counsel, providing legal advice to the President and executive branch on questions of law.  Such OLC opinions are accorded, in the words of one former head of OLC, a "superstrong stare decisis presumption."  Was the 1921 Attorney General Opinion withdrawn to make way for this new opinion of law that a recess appointment could be exercised when the Senate is in recess for only three days?

 

(4)   Has the Department formally withdrawn any other prior opinions issued by the Attorney General or OLC regarding the length of time a recess must extend prior to the President making a recess appointment?  If so, which ones were withdrawn or overturned?  Provide the basis for withdrawing or overturning those opinions.

 

(5)   Given this unprecedented maneuver of recess appointments taking place while the Senate stood in recess for only three days, would it be the Department's position that the President could make a recess appointment during the weekend or when the Senate stands in recess from the evening of one weekday to the morning of the next weekday?

 

(6)   In 2010, the Deputy Solicitor General argued before the Supreme Court that "recess has to be longer than 3 days" for the President to use the recess appointment power.  Does the Department continue to support this position?  If not, why not?

 

(7)   In the event that the Department has not withdrawn or overturned any of the prior opinions issued by the Attorney General or OLC, how does the Department reconcile those opinions with the decision of the President to make recess appointments while the Senate remained in Session?  If you believe the positions can be reconciled, provide a legal basis supporting this position.

 

(8)   Do you believe the President's decision to make these recess appointments notwithstanding the absence of an adjournment resolution is constitutional?  Please explain.

 

Thank you for your prompt attention to this matter and for responding no later than January 20, 2011.  We look forward to your detailed response.

 

Sincerely,

 

 

 

[1] 33 U.S. Op. Atty. Gen. 20, 25 (1921).

2 41 U.S. Op. Atty. Gen. 463, 468 (1960) (stating "I fully agree with the reasoning and with the conclusions reached in that opinion.").

3 16 U.S. Op. Off. Legal Counsel 15, (1992) (concluding that the President could make a recess appointment during an intrasession recess from January 3, 1992, to January 21, 1992).

4 2001 OLC LEXIS 27.

5 Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment, at 24-26, Mackie v. Clinton, 827 F.Supp.56 (D.D.C. 1993), vacated as moot, 10 F.3d 13, (D.C. Cir. 1993).

6 Brief for the United States in Opposition, Miller v. United States, No. 04-38 (2004) available at http://www.justice.gov/osg/briefs/2004/0responses/2004-0038.resp.pdf (last visited Jan. 5, 2012) (citing

7 See Brief for the United States in Opposition, Evans v. Stephens, No. 04-828 (2004) available at http://www.justice.gov/osg/briefs/2004/0responses/2004-0828.resp.pdf (last visited Jan 5, 2012).

8 New Process Steel v. Nat'l Labor Relations Bd., No. 08-1457 pg. 50 (March 23, 2010), statement of Deputy Solicitor General Neil Katyal available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1457.pdf (last visited Jan. 5, 2012).

9 It is noteworthy to add that according to the Congressional Research Service, prior to President Obama's recent recess appointments, no president in the past 30 years dating back to President Reagan, had made a recess appointment in a shorter recess than 11 days for an intersession recess and 10 days for an intrasession appointment.  See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions, pg. 3, Dec. 12, 2011.