The High Court of Justice in Israel put an end to years of controversy Thursday, November 19, by ruling that privately run prisons are unconstitutional. The full text of this landmark decision is currently only available in Hebrew on the Court's website [here]. I will post the English translation when it becomes available; however, the main reasoning and implications of the case discussed below should be suggestive of its importance.
The panel of nine justices, presided over by Supreme Court President Dorit Beinisch, ruled in an 8-1 decision that a transfer of authority for managing the prison from the state to a private contractor whose aim is monetary profit would severely violate the prisoners' basic human rights to dignity and freedom. (See Tomer Zarchin, International legal precedent: No private prisons in Israel, HAARETZ)
In 2004, the Knesset passed Amendment 28 to the Prisons Ordinance, which permitted the establishment of private prisons in Israel. The state's motivation was to save money by transferring prisoners to facilities managed by a private firm, to be chosen by tender. The state would pay the franchisee $50 per day for each inmate, but would be spared the cost of building new prisons and expanding the Israel Prison Service's staff.
In 2005, the human rights department of the Academic College of Law in Ramat Gan filed a petition to the High Court challenging the amendment. The petition relied on two arguments. First, it said, transferring prison powers to private hands would violate the prisoners' fundamental human rights to liberty and dignity. And second, a private organization always aims to maximize profit, and would therefore seek to cut costs by, for instance, skimping on prison facilities and paying its guards poorly, thus further undermining the prisoners' rights.
President Beinisch held that, while the amendment was passed in part due to a desire to improve prison conditions, the main purpose of the change was economic - namely, to save the state money. Normally, the ruling noted, the court does not intervene in economic policies decided upon by the cabinet and Knesset. But in this case, Beinisch wrote, the legislation harms basic constitutional rights. Thus the amendment's economic aspect is not the decisive factor that the court must weigh in exercising its power of judicial review.
Israel's basic legal principles, she continued, hold that the right to use force in general, and the right to enforce criminal law by putting people behind bars in particular, is one of the most fundamental and one of the most invasive powers in the state's jurisdiction. Thus when the power to incarcerate is transferred to a private corporation whose purpose is making money, the act of depriving a person of his liberty loses much of its legitimacy. Because of this loss of legitimacy, the violation of the prisoner's right to liberty goes beyond the violation entailed in the incarceration itself.
Beinisch also argued that in a prison run by a private company, prisoners' rights are undermined by the fact that the inmates are transformed into a means of extracting profit. Efficiency, she wrote, is not a supreme value when the most basic and important human rights for which the state is responsible are at stake.
The implications of the case
Following the decision, the state is expected to have to pay hundreds of millions of shekels in compensation to a company that had already completed construction of the first private prison, near Be'er Sheva.
Attorney Gilad Barnea, who represented the college, told The Jerusalem Post that "the ruling is very important because it establishes clear boundaries regarding what is permissible and what is not when it comes to transferring functions from the state to private hands. It is also important because the court determined that the social covenant is an important element in human liberty and that the court may overrule legislation that diminishes it."
Barnea added that the ruling set a world-wide precedent. So far, there had been only one other court challenge to the legality of a private prison - in Costa Rica - and the court rejected it. He said he was certain that other countries would study the High Court ruling carefully and that, at least in this sense, "we will be a light unto the nations."
He also said the ruling would have an immediate effect on three other cases involving the state's intention to privatize. One of the cases involves the hiring of private instructors at the police training center. A second involves the hiring of private instructors for the huge army base near Ramat Hovav in the Negev. The third is the government's intention to privatize the Bailiff's Office and the center for collecting fines.
Another article in Haaretz describes the Israeli Supreme Court's decision as dropping a bombshell. According to the article, the bombshell dropped is hidden in one of the ruling's final pages. "Supreme Court President Dorit Beinisch wrote that so far, no American, British or New Zealand court has had to rule on whether privatizing prisons is unconstitutional. But many experts, she noted, have argued that if this question did arise in Europe, it would be rejected out of hand as contrary to the European Convention on Human Rights.
Thus four years after the petition was filed and about a year after the concessionaire finished building the first private prison - where 2,000 prisoners were slated to be sent - Israel's High Court has effected a revolution: It ruled in firm, unequivocal language that the problem is not the nature of the prison or the concessionaire. Rather, it said, the very principle of privatizing prisons is unconstitutional.
The High Court stressed that it was not intervening in the relations between the state and the concessionaire, who hastened to demand massive compensation. Instead, it addressed other aspects of the issue.
This ruling will not only be studied in Israel, it will also doubtless generate a conceptual revolution worldwide. And Beinisch was clearly aware of this. The ruling rests on the political and moral thought of the great philosophers who discussed the modern state and its administration, as well as on the sharp, clear statements Prof. Aharon Barak used in establishing the basis for his constitutional legislation.
The "social welfare" lobby will probably laud the court as moral and humane, and perhaps even socialist. That would be a mistake. Beinisch cites Thomas Hobbes and John Locke, and accompanies every one of her arguments with citations from Barak, who stressed that human rights must not be left in the hands of any legislator."
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Last Thursday's judgment comes at the end of a long discussion in Israel about the proper limits on transferring of authority from the state to the private sector that found both supporters and opponents (see, e.g., this Roundtable Forum held at the Israel Democracy Institute) and skepticism in the academic literature (see Uri Timor, Privatization of Prisons In Israel: Gains And Risks, 39 Israel Law Review 81 (2006)); it will probably spur a new round of debates not just in Israel but in other jurisdictions facing the same question.
According to another news item, "prison privatization first came up for discussion [in Israel] in the 90's, when prisons were so overcrowded and badly maintained that they seemed unfit for habitation. The following years saw no improvement. In 2005, the Israel Prison Service (IPS) reported that because of overcrowding, conditions were among the worst in developed countries, with up to eight prisoners in a cell and with many having to sleep on the floor. As of March 2008, there were 22,788 inmates, including 9,068 security prisoners. The average space allotted to a prisoner has dropped in recent years from 3.4 square meters to 2.9. By comparison, the figure in Europe is 4.5 square meters. ... According to the Ministry of Public Security (MOPS), Israel [would be] following the "British model," where the "entrepreneur constructs and operates all systems, including bearing responsibility for the fulfillment of prisoners' rights." The state [would retain] supervision and control by "placing in every privately-run facility a comptroller or team of comptrollers who alone exercise the authority to judge and punish prisoners." (The "US model" goes further, giving private companies the power to judge and punish, while the "French model" is more cautious, keeping security and prison management in state hands.) MOPS [said] that the state [would] retain sole responsibility for classifying and allocating prisoners to the private facility, plus punishment and sentencing."
In the United States, the issue was brought to the fore again when Arizona initiated an effort to put its entire prison system under private control (Jennifer Steinhauer, Arizona May Put State Prisons in Private Hands, The New York Times, October 24, 2009). "[I]n a first in the criminal justice world, the state's death row inmates could become the responsibility of a private company." According to the same article, "[t]he privatization move has raised questions - including among some people who work for private prison companies - about the private sector's ability to handle the state's most hardened criminals. While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner."
The privatization of state prisons in the U.S. is part of an effort to balance budgets in view of dwindling state resources. The Israeli Supreme Court took a different path when it reviewed the privatization amendment whose rationale was likewise cutting costs. As President Beinisch wrote, while the High Court usually does not interfere in economic policies formulated by the government and Knesset, it takes a different approach in respect to legislation that undermines the most fundamental constitutional rights.
Principal facts
The applicant, Patricia Chaudet, is a French national who worked as an air hostess from 1982. Between 1997 and 2001 she suffered five work-related accidents as a result of air turbulence. She was awarded a disability pension in June 2002 (for a degree of disablement of 8%), then given disabled-worker status in April 2003. On 30 April 2003 the civil aviation medical council declared her unfit for the duties of an air hostess (without giving reasons for its decision); then, on 12 May 2004, declared her permanently unfit for such duties. On 25 October 2004 the civil aviation medical board declared that this permanent incapacity was not attributable to the airline, thus depriving the applicant of the right to receive compensation in that respect. After an unsuccessful application for review, Ms. Chaudet challenged that decision before the Conseil d'Etat, considering, in particular, that insufficient reasons had been given for it. The Conseil d'Etat dismissed the appeal; it held, in particular, that sufficient reasons had been given for the disputed decision, in view of the legal requirement to respect medical confidentiality.
The civil aviation medical board is a collegial body governed by the Code of Civil Aviation. It forms part of the Ministry of Transport and is made up of doctors who are appointed by the Minister. It studies and coordinates physiological, medical, medico-social and health issues of interest to civil aviation, particularly with regard to flight personnel and passengers. It rules, among other things, on the permanent nature of airline employees' medical incapacity and takes decisions on the attribution of accidents at work.
Complaint before the ECHR
Ms. Chaudet relied essentially on Article 6 § 1 of the Convention (right to a fair hearing). She complained of the unfair nature of the proceedings before the civil aviation medical board, on account of the inadequacy of the reasons given for its decision, and about the fact that it had been impossible for her to have access to the case file on which the decision had been based. She also complained about the presence of the Government Commissioner at the deliberations of the bench of the Conseil d'Etat which ruled on her case.
Decision of the ECHR
On the fairness of the proceedings before the civil aviation medical board
Ms. Chaudet was entitled to have her claims examined by a tribunal which met the requirements of Article 6§1, since they were genuinely aimed at obtaining payment of compensation provided for by law.
The Court did not consider it necessary to examine whether the civil aviation medical board met the requirements of Article 6§1. In contrast, it was obliged to ensure that the Conseil d'Etat satisfied the applicant's right to a court and to determination of the dispute by a court. In this case, the Conseil d'Etat did not have "full jurisdiction", which would have had the effect of substituting its decision for that of the civil aviation medical board. It had nonetheless addressed all of the submissions made by the applicant, on factual and legal grounds, and assessed all of the evidence in the medical file, having regard to the conclusions of all the medical reports discussed before it by the parties.
The applicant's case had thus been examined in compliance with the requirements of this Article and the Court concluded (unanimously) that there had been no violation of Article 6§1.
On the presence of the Government Commissioner at the Conseil d'Etat's deliberations
Reiterating its case-law (Martinie v. France ([GC], no 58675/00, 12 April 2006)) that the presence of the Government Commissioner at the deliberations of the bench of the Conseil d'Etat, as was the situation at the time of the disputed events, was incompatible with the requirements of a fair hearing, the Court concluded (unanimously) that there had been a violation of Article 6 § 1.
The judgment is available only in French here. You can read the press release, which is available in English, here.
According to its website, the Commission recognizes that lobbying is a legitimate, even essential part of democratic decision making, whether it is carried out by public affairs consultancies, private companies, NGOs, law firms, think tanks or trade associations. The Commission needs and appreciates the input it gets from such organizations, but in return asks their cooperation in showing the public that the relationship is based on high standards of probity and transparency.
As part of a wider effort to make EU decision-making more transparent, the Commission launched a register in 2008 that is meant to list all interest representatives - a catch-all term for groups seeking to influence policy. The first annual review of the voluntary scheme found that the number of registered organizations and individuals has reached 2,100 and is rising. The report notes that some supporters of efforts to regulate lobbyists want registration to be mandatory. But it says that is not warranted given the high rate of participation so far. Commissioner Siim Kallas says the register has changed the commission's corporate culture. EU officials now think twice about meeting with unregistered interest representatives. And some EU divisions have dropped unregistered organizations from their database or taken similar steps.
But not everyone is happy with the register. Many law firms and think tanks have boycotted it. Lawyers worry it violates their rules on client confidentiality, while think tanks say their activities do not count as lobbying. The Commission hopes to resolve these issues by clarifying the language in the register and creating a separate category for think tanks. It will also revise the rules for financial disclosure to improve transparency.
More information is available here.
The European Court of Human Rights (a Chamber of seven judges) notified in writing today its judgment in the case of Lombardi Vallauri v. Italy (application no. 39128/05). The Court held that the Catholic University of Milan, which is a public law entity ("personne juridique de droit public"), should have given reasons for refusing to employ a lecturer who had not been approved by the Ecclesiastical authorities; hence, it found a violation of Articles 6 § 1 (right to a fair hearing) and 10 (freedom of expression) of the European Convention on Human Rights.
Principal facts
More specifically, the applicant, Mr. Lombardi Vallauri, is an Italian national who began teaching legal philosophy in 1976 at the Faculty of Law of the Università Cattolica del Sacro Cuore (Catholic University of the Sacred Heart) in Milan, on the basis of contracts renewed on an annual basis. When a competition for the post was advertised for the 1998/99 academic year, he applied. The Congregation for Catholic Education, an institution of the Holy See, informed by a letter the President of the University that some of the applicant's views were "in clear opposition to Catholic doctrine" and that "in the interests of truth and of the well being of students and the University" the applicant should no longer teach there. The University President wrote to the Dean of the Faculty of Law, informing him of the Congregation's position. The Faculty Board took note of the Holy See's position and decided not to examine the applicant's application, since one of the conditions for admission to the competition, namely the approval of the Congregation for Catholic Education, had not been met.
The applicant applied to the Lombardy Regional Administrative Court to have the decisions of the Faculty Board and the ecclesiastical authority set aside. He argued that the decisions in question were unconstitutional because they breached his right to equality, freedom of instruction and freedom of religion. The Regional Administrative Court rejected the application on the grounds, inter alia, that adequate reasons had been given for the Faculty Board's refusal to consider the applicant's candidacy, and that the revised Concordat between the Holy See and the Italian Republic did not lay down any requirement to state the religious grounds for refusing approval. The court further held that neither the Faculty Board nor the court itself had jurisdiction to examine the legitimacy of the Holy See's decision, which had emanated from a foreign State. The court also pointed out that teaching staff were free to choose whether or not to adhere to the principles of the Catholic faith.
Mr. Vallauri then appealed to the Consiglio di Stato reiterating the lack of reasons given for the Faculty Board's decision and contesting the lack of jurisdiction of the administrative court. The Consiglio di Stato dismissed the appeal. It stated that the Italian administrative and judicial authorities could not depart from a Constitutional Court judgment, according to which the fact that teaching appointments at the Catholic University were subject to the approval of the Holy See was compatible with Articles 33 and 19 of the Constitution, which guaranteed freedom of instruction and freedom of religion respectively. The Consiglio di Stato further observed that "no authority in the Republic may rule on the findings of the ecclesiastical authority".
Complaint before the ECHR
Relying on Article 10 of the Convention, Mr Lombardi Vallauri complained that the decision of the Università Cattolica del Sacro Cuore, for which no reasons had been given and which had been taken without any genuine adversarial debate, had breached his right to freedom of expression.
Relying also on Article 6 § 1 of the Convention with regard to the fairness of the proceedings and his right of access to a court, the applicant complained of the domestic courts' failure to rule on the lack of reasons for the Faculty Board's decision, thereby restricting his ability to appeal against that decision and to instigate an adversarial debate. Mr. Lombardo Vallauri also complained of the fact that the Faculty Board had confined itself to taking note of the Congregation's decision, which had also been taken without any adversarial debate.
Decision of the ECHR
The Court considered that, in omitting to explain how the applicant's views, which supposedly ran counter to Catholic doctrine, were liable to affect the University's interests, the Faculty Board had not given adequate reasons for its decision.
The Court went on to observe that, although it was not for the domestic authorities to examine the substance of the Congregation's doctrinal stance, the administrative courts, in the interests of the principle of adversarial debate, should have addressed the lack of reasons for the Faculty Board decision.
In conclusion, the Court considered that the University's interest in dispensing teaching based on Catholic doctrine could not extend to impairing the very substance of the procedural guarantees afforded to the applicant by Article 10 of the Convention. Accordingly, in the particular circumstances of the case, the interference with Mr. Lombardi Vallauri's freedom of expression had not been "necessary in a democratic society". The Court therefore held, by six votes to one, that there had been a violation of Article 10 of the Convention in its procedural aspect.
For the same reasons the Court held that the applicant had not had effective access to a court, and found a violation of Article 6 § 1 by six votes to one.
Washington Post has an article today on President Obama scolding business groups that have fought his plan to create a new federal agency (Consumer Financial Protection Agency) to oversee mortgages, credit cards and other consumer financial products, casting the debate as a battle between his administration and Wall Street.
According to the newspaper, the proposed agency has become the most divisive, partisan element of the administration's wide-ranging plan to overhaul the nation's financial regulatory system. Republicans on congressional committees considering regulatory reform have almost uniformly opposed it. Banks and other financial firms, along with armies of lobbyists, have flooded Capitol Hill carrying the message that the new agency would add an unnecessary layer of government regulation, increase costs, stifle financial innovation and ultimately curtail choices for consumers. Obama disputed that the new agency would restrict consumer choice or limit meaningful innovation. "Nothing could be further from the truth," he said, arguing that "in a financial system that's never been more complicated, it has never been more important to have a watchdog function like the one we've proposed." The House Financial Services Committee plans to edit and vote on the legislation beginning as early as next week.
On the other side of the Atlantic, there are different agencies for consumers of financial products, although they seem to be closer to ombudsmen and, consequently, probably less powerful than the contemplated U.S. agency might prove to be. In the European Union, the European Commission launched in 2001 the Financial Dispute Resolution Network (FIN-NET). FIN-NET is a financial dispute resolution network of national out-of-court complaint schemes in the European Economic Area countries (the European Union Member States plus Iceland, Liechtenstein and Norway) that are responsible for handling disputes between consumers and financial services providers, i.e. banks, insurance companies, investment firms and others. Currently FIN-NET has 46 members from 21 European Economic Area countries. More information about the members can be found here. It would be interesting to hear more about individual country cases. Are agencies entrusted with overseeing financial services in other places part of the respective ministries or independent public bodies? What is the scope of their powers? Do they resemble Ombudsmen or do they also possess regulatory authority?
On October 6, 2009, the Council of the European Union publicized its draft conclusions on Better Regulation for the 3-4 December 2009 Competitiveness Council. The text of these conclusions is available here.
In its draft conclusions, the Council acknowledges that important progress has been achieved both at EU level and in the member states in taking the Better Regulation Agenda forward; it stresses, however, that more needs to be done.
With respect to Impact Assessment, the Council considers that there is scope for quality improvement as regards, inter alia, evaluation of alternative policy options, transparency and quantification of administrative burdens as well as other costs and benefits. It also invites the member states to continue to establish or further develop their impact assessment systems, including providing their civil servants with training in handling impact assessments.
Furthermore, the Council stresses the need for early and timely stakeholder consultation, using appropriate methods, throughout the policy-making cycle to enhance regulatory quality; in addition, it reaffirms the importance of enhancing access to law and the need for clear and simple language in order to make the regulatory framework easier to comply with. Therefore, it invites the Commission to
- enhance the use of consultation during the whole policy-making cycle;
- consider the creation of an easily accessible multi-lingual website, a "single entry point", with updated relevant information on policies and initiatives related to business.
Today marks the formal opening of the UK Supreme Court with the swearing in of its 11 justices in a ceremony in London. The Supreme Court, housed at Middlesex Guildhall, replaces the Law Lords as the last court of appeal in all matters other than criminal cases in Scotland.
According to BBC news ("UK Supreme Court judges sworn in"), Lord Phillips, the first President of the Court, said: "This is the last step in the separation of powers in this country. We have come to it fairly gently and gradually, but we have come to the point where the judges are completely separated from the legislature and executive. ... The change is one of transparency. It's going to be very much easier for the public to come to our hearings. ... I would hope that the court is still sitting in 100 years' time and that when people look back at this step that they see it as a very significant step in the constitution of this country."
The Supreme Court sits for the first time later on Thursday to deal with a relatively minor issue relating to legal costs. Its first major appeal hearing follows next week in a case concerning terrorist suspects whose assets have been frozen.
The Supreme Court's website address is: http://www.supremecourt.gov.uk/. A blog has been launched to monitor Supreme Court developments (http://www.ukscblog.com/).
U.S. EPA Administrator Lisa Jackson announced yesterday a proposal requiring large industrial facilities that emit at least 25,000 tons of greenhouse gases (GHGs) a year to obtain construction and operating permits covering these emissions. These permits must demonstrate the use of best available control technologies and energy efficiency measures to minimize GHG emissions when facilities are constructed or significantly modified.
In addition, EPA is requesting public comment on its previous interpretation of when certain pollutants, including CO2 and other GHGs, would be covered under the permitting provisions of the Clean Air Act. A different interpretation could mean that large facilities would need to obtain permits prior to the finalization of a rule regulating greenhouse gas emissions.
You can find additional information, including a link to the full text of the Administrator's remarks at the California Governor's Global Climate Summit, on the agency's website here. Furthermore, the Washington Post today has an article ("EPA, Senate Take Aim at Greenhouse Gases") on the EPA's proposal and the recent climate bill introduced in the Senate. Here is the article that appeared in the New York Times on the same topic.
The OIRA Draft 2009 Report to Congress on the Benefits and Costs of Federal Regulations is available here. According to the summary provided in the Federal Register Notice of Availability and Request for Comments (which is also available on that same website), the draft report is divided into four chapters. Chapter I examines the benefits and costs of major federal regulations issued in fiscal year 2008 and summarizes the benefits and costs of major regulations issued between September 1998 and 2008. It also discusses regulatory impacts on state, local, and tribal governments, small business, wages, and economic growth. Chapter II examines trends in regulation since OMB began to compile benefit and cost estimates records in 1981. Chapter III provides an update on implementation of the Information Quality Act. Chapter IV summarizes agency compliance with the Unfunded Mandates Reform Act.
On September 14, 2009, the European Ombudsman appeared before the Committee on Petitions of the European Parliament to present the Annual Report for the year 2008. The presentation is available here.
According to the presentation, the Ombudsman closed a record number of inquiries in 2008 - 355 - with most taking less than a year. The Ombudsman registered a total of 3,406 complaints during the year in question, which represents a 6% increase compared to 2007. In almost 80% of cases registered, they were able to help the complainant by opening an inquiry into the case, transferring it to a competent body, or giving advice on where to turn.
An important aspect of the presentation was that in 2008 by far the most common allegation examined was lack of transparency in the EU administration. This allegation arose in 36% of all inquiries and included refusal of information or documents. This finding supports conclusions scholars have reached with respect to a perceived lack of transparency in the EU administration. The Ombudsman himself stated: "It is with a certain degree of concern that I have noted the high number of complaints alleging lack of transparency. After all, an accountable and transparent EU administration is key to building citizens' trust in the EU."
On September 14, 2009, the European Commission issued a Report to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the directive on strategic environmental assessment (Directive 2001/42/EC- hereinafter the "SEA Directive") The Report is available here.
The SEA Directive requires certain public plans and programs (P&P) to undergo an environmental assessment before they are adopted. The P&P covered by the Directive are subject to an environmental assessment during their preparation, and before their adoption. This includes the drawing up of an environmental report in which the likely significant effects on the environment and the reasonable alternatives are identified, and the carrying out of consultations (with the public, the environmental authorities, and with other member states (MS) in the case of transboundary impacts). The environmental report and the results of the consultations are taken into account before adoption. Once a P&P is adopted, the environmental authorities and the public are informed and relevant information is made available to them. In order to identify unforeseen adverse effects at an early stage, significant environmental effects of the P&P are to be monitored.
According to the Report, consideration and identification of alternatives in the environmental report is one of the few issues that have given rise to problems in MS. Extensive national guidelines have been developed by some MS in order to provide support for the identification and selection of reasonable alternatives in individual procedures. However, the majority of MS have not defined how this should be done. Most national legislations do not provide a specific definition of 'reasonable alternatives' or a number of alternatives that must be assessed; the choice of 'reasonable alternatives' is determined by means of a case-by-case assessment and a decision. All MS report that the 'do-nothing' alternative has to be included in the environmental report on a mandatory basis.
With respect to consultations, the Report explains that since the SEA Directive does not provide detailed specifications about the procedures for public consultation, a wide range of methods are used: public announcements, publication in official journals or the press, public meetings, internet surveys and questionnaires. The Commission also points out that general experience shows that public consultation, especially when organized at an early stage of planning and when understood as a process, contributes to a higher acceptance of the P&P, and therefore to the early identification and resolution of conflicts.
Furthermore, the Report refers to the relationship of the SEA Directive with other EU legislation, including the Habitats and the Environmental Impact Assessment Directives.
In an op-ed published in the Washington Post of September 13, 2009 (available here, Sen. Kay Bailey Hutchison (R-Tex.) argues that the deployment of a great number of White House "czars" "sets a dangerous precedent that undermines the Constitution's guarantee of separated powers." The White House czars are presidential assistants charged with responsibility for given policy areas. Sen. Hutchison's argument is that these officials hold unknown levels of power over broad swaths of policy; therefore, President Obama should submit each of his policy czars to the Senate so that the latter can review their qualifications, roles and the limits on their authority.
In response to this op-ed, David B. Rivkin Jr. and Lee A. Casey suggest, to the contrary, that "far from undermining the separation of powers the president's right to organize his White House policymaking apparatus is protected by that very constitutional principle." (Washington Post, September 19, 2009 available here) They explain that however much the czars may drive the policymaking process at the White House, they cannot determine what that policy will be. This is the critical difference between the White House czars and federal officials who must be confirmed by the Senate under the "appointments clause" of the U.S. Constitution. In the absence of legislation the only power exercised by White House czars comes from their proximity to the president and the access this provides. As they note, this might be power, but does not constitute "significant authority" under U.S. law and thus is not subject to the requirements of the "appointments clause."
The Senate confirmed Professor Cass Sunstein to be Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, on September 10, 2009 (see New York Times). He was approved 57 to 40, with the vast majority of his support coming from Democrats. The roll call is available here.
Our blog aims to help inform scholars and practitioners of administrative law about new developments in adminstrative law in a wide range of countries and institutions.
Akis Psygkas is organizing the posts. He will be monitoring the press and the academic literature to let subscribers know about important developments and to provide links to documents, court decisions, and recent scholarship. However, he cannot do that alone. We need your help both to locate material and to post comments.
We are happy to post entries in languages other than English and links to non-English materials. The goal is for this to be a truly comparative law effort so we hope that even posts about the US will prompt some of you to respond with information about related developments elsewhere.
We look forward to hearing from you.
All the best, Susan