Commentary

AG Lynch Refuses to Defend Law to Speedily Terminate Wrongdoers

Hans Bader
By Hans Bader | June 6, 2016 | 12:15 PM EDT

U.S. Attorney General Loretta Lynch (AP Photo)

One of an Attorney General’s fundamental duties is to defend laws passed by Congress against constitutional challenges – even when those challenges might have merit. But Attorney General Loretta Lynch is refusing to do so, in a challenge by a former Department of Veterans Affairs director suing to get her job back after she committed a crime. Lynch argues that a statutory provision designed to prevent incompetent and criminal federal employees from suing for reinstatement is itself a violation of the Constitution.

Lynch’s sudden constitutional scruples are ironic, given the Obama administration’s past willingness to ignore Constitutional checks and balances and attack First Amendment freedoms when it is ideologically convenient, as Supreme Court rulings against the administration show (including some unanimous rulings, such as Noel Canning and Hosanna-Tabor). The Obama administration has often exhibited contempt for the rule of law, as law Professor David Bernstein explains in “Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law.”

As ABC News reports,

“The Justice Department is siding with a legal argument by a fired Department of Veterans Affairs official at the center of a nationwide scandal over long wait times for veterans seeking medical care and secret lists covering up the delays.

“Sharon Helman, the former director of the Phoenix VA Health Care System, is suing the VA to win back her old job. Helman argues in court papers that a key portion of a 2014 law passed in response to the wait-time scandal is unconstitutional and denies her an important step to appeal her firing …

“Helman is serving two years' probation for failing to disclose more than $19,000 in gifts she received while supervising the Phoenix hospital where whistleblowers revealed veterans on secret waiting lists faced scheduling delays of up to a year. As many as 40 veterans died while awaiting care at the hospital, according to an investigation by the VA's office of inspector general …

“The inspector general found that workers at the Phoenix VA hospital falsified waiting lists while their supervisors looked the other way or even directed it, resulting in chronic delays for veterans seeking care.”

GOP lawmakers “reacted with outrage, saying the attorney general's failure to defend the 2014 law could make it easier for Helman — a convicted felon — to get back her job.”

House Majority Leader Kevin McCarthy notes that a key provision in the Veterans Choice Act “allowed for incompetent and indifferent executives whose inaction allowed veterans to die to be more easily fired. Now, even after the president signed this provision into law, his administration is refusing to defend this measure of accountability.” He argues that this “decision by the Obama administration puts our veterans at further risk. It undermines very modest reforms to our broken civil service system supported in 2014 by the president and an overwhelming majority of Congress."

Lynch’s refusal defeats a central purpose of a 2014 law: To make it easier to fire Veterans Affairs employees who commit wrongdoing. Lynch objects to a provision in it that gives "an administrative judge final and unreviewable discretion to determine if the removal was lawful violates the U.S. Constitution." It has been extremely difficult to fire wrongdoing executives at the VA, and they have been repeatedly reinstated to their jobs when they filed appeals (such as officials fired for abusing their position for personal gain).

In theory, civil-service employees can be fired for cause, but in practice, they ‘‘are almost impossible to fire,’’ noted Carl Nolte in the Nov. 30, 1992 San Francisco Chronicle. As Jim Balow noted in the August 8, 2000 Houston Chronicle, the process of removing federal employees is so difficult that few employees with ‘‘poor’’ ratings ever get fired. “HUD Can’t Fire Anyone Without Criminal Charges, Even Interns,” writes Luke Rosiak in the Daily Caller. “Here’s Why It’s All But Impossible To Fire A Fed,” explains Kathryn Watson, also in the Daily Caller.

Ironically, Lynch cites a Constitutional separation of powers provision, the Appointments Clause, which the Obama administration has seldom cared about in the past (it ignored Constitutional limits on the President’s appointments powers, leading to a unanimous Supreme Court ruling against it in the Noel Canning case, and argued a very non-textual reading of the Appointments Clause in a 2010 case). For all I know, that provision might actually violate the Appointments Clause (an issue on which I express no opinion).

But any violation there is dwarfed by the separation of powers violations resulting from other existing rules impeding the dismissal of incompetent or miscreant VA officials, rules that the Obama administration has never objected to or tried to change. Those provisions are far greater intrusions into government accountability and executive authority. By ignoring those violations, and focusing on the ALJ provision in isolation, Lynch is ignoring the original meaning of the Constitution, and the logic of the Supreme Court’s decision in Myers v. United States (1926).

The logic of the Myers decision would allow “officers of the United States,” like former VA director Sharon Helman, to be fired at will, even without any ALJ ruling, as I explain here. The Myers decision ruled that the President has the power to fire at will purely executive officials like postmasters, without any need to show wrongdoing, regardless of civil service rules to the contrary. Like the postmaster in the Myers case, VA directors like Helman easily qualify as federal “officers” subject to removal by agency heads without cause, since they have “significant authority.” Indeed, they have far more authority than many minor officials whom the Supreme Court long ago held to be officers within the meaning of the Constitution’s Appointments Clause, such as ‘‘thousands of clerks’’ and an ‘‘assistant surgeon.” So under the original meaning of the Constitution, Helman could not challenge her termination.

It is curious that the Obama administration only raised its constitutional objection to this ALJ provision now, long after the provision was included in the legislation that Obama signed, and long after Congress appropriated $16 billion more for the VA as part of a package deal containing that provision. That raises suspicions of “bait and switch” by the administration, which wanted more money, but perhaps not more accountability at the expense of left-leaning government bureaucrats.

Sen. John McCain (R-AZ) called Lynch’s decision "shameful" and argued that it contradicts a statement Obama made when he signed the VA reform law in August 2014. "If you engage in an unethical practice, if you cover up a serious problem, you should be fired. Period," Obama said. McCain said that the Attorney General’s refusal to defend the law "not only undermines the law that Congress passed and the president supported, but it sends a clear message that for President Obama and Attorney General Lynch, the sanctity of a federal bureaucrat's job is far more important than the health and well-being of our veterans."

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.

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