Monday, March 6, 2017
The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.
This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO. For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear. While the Constitution protects non-citizens, it does not have global applicability.
The new EO avers that the previous EO was not a "Muslim Ban":
Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.
Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry. Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.
The new EO also changes the seven nations to six - - - omitting Iraq as a "special case." This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly? The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses."
That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation." Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.
In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.
Saturday, March 4, 2017
In his opinion in LaCroix v. Junior, Florida state judge Milton Hirsch confronted the constitutionality of the Executive Order threatening to revoke federal funding for sanctuary cities which as we previously predicted "overreaches."
The judge granted the petition for writ of habeas corpus by a man "incarcerated in the Miami-Dade County correctional system." Although there were no state charges against him, LaCroix had "no prospect of imminent release," because as "often happens" Immigration and Customs Enforcement (“ICE”), the federal agency "responsible for the deportation of those whose presence in this country is unlawful, had filed a detainer or lodged a request with the corrections department, seeking to have the department retain an inmate whom would otherwise be released, because ICE has a basis to inquire further as to the status of the person sought.
Judge Hirsch identified "two inequities" of this practice. First, until ICE takes custody of the person, the county must "house, oversee, and control" people in which it has no ongoing interest and to do so at county expense. Second, "it results in the continued incarceration in county jails of persons neither charged with, nor sentenced for violating, any state or county law, and whose ongoing incarceration by the county is therefore difficult to justify."
Judge Hirsch's opinion outlines the controversies surrounding the county's changing practices, noting that while there had been county detention on behalf of ICE, in 2013 the Dade County Commission changed its policy to effectively ban county jails from honoring ICE requests. However, after the President "threatened to cut federal grants for any counties or cities that don’t cooperate fully with Immigration and Customs Enforcement," Miami-Dade Mayor Carlos Gimenez immediately reversed county policy and ordered county jails to comply with ICE requests.
Judge Hirsch finds that the federal government cannot constrict or commandeer state officials largely relying on Printz v. United States (1997), which held the Brady Handgun Violence Prevention Act's requirement of background checks by state officials unconstitutional pursuant to the Tenth Amendment. Quoting from Justice Scalia's opinion for the Court in Printz, Judge Hirsch concluded that the present situation was "actually easier" to decide: Printz involved something that local law enforcement is often called to do as a matter of local law, but here
however, we deal with an area of the law – the regulation of immigration and deportation – reserved exclusively to the federal government. See U.S. Const. Art. I § 8, clause 4. The Department does not, and as a matter of constitutional law cannot, act in this federal bailiwick. According to its “mission statement,” see http://www.miamidade.gov/corrections/about-corrections.asp, the Department, “serves our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.” (Emphasis added.) This is wholly unrelated, arguably antithetical, to the mission of ICE, see https://www.ice.gov/overview, which is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” Yet by operation of the recent change in county policy, and the presidential order upon which it is based, county correctional officers and county correctional facilities are made appendages of ICE, obliged to imprison and maintain Petitioner for ICE –
Petitioner and others, perhaps many others, similarly circumstanced. If the use made of local governmental resources in Printz was constitutionally proscribed, the use made of local governmental resources here is surely constitutionally proscribed.
Moreover, although LaCroix is not a government official, the Tenth Amendment's reservation of rights to "the people" is one that can be raised by an individual, as the Court unanimously held in Bond v. United States (2011). (Recall that Carol Anne Bond was similarly successful in her second trip to the United States Supreme Court when it held that the federal government had essentially overreached in prosecuting her for violation using "chemical weapons.")
Judge Hirsch's analysis of Tenth Amendment precedent is on solid ground. The opinion is carefully crafted and closely reasoned. But Judge Hirsch does evoke the larger political contexts in at least two respects.
First, Judge Hirsch raises and discounts the term "sanctuary city." He writes that although the term has a "Biblical sound to it" (explaining in a footnote the more precise Biblical meaning), and thus has some rhetorical force,
Miami is not and never was a “sanctuary city,” and the issue raised by the petition at bar has nothing to do with affording “sanctuary” to those unlawfully in this country. It has everything to do with the separation of powers between the state and federal governments as reflected in the Tenth Amendment to, and in the very structure of, the United States Constitution.
Nevertheless, near the end of the opinion, Judge Hirsch repeats his conclusion that "Miami is not, and has never been, a sanctuary city," and then adds:"But America is, and has always been, a sanctuary country." He quotes one of his own previous opinions and includes a footnote quoting Emma Lazarus, The New Colossus and discussing the dedication of the Statue of Liberty.
Second, Judge Hirsch raises the specter of unbridled Executive power. He notes that although the "presidential edict at issue here seeks to bring about the conscription of the corrections department, and employs powerful financial pressure to do so," the Spending Power is vested in Congress under Art. I §8 cl. 1 rather than the Executive. Additionally:
No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream.
It does not seem too far of a stretch to read this as a critique of the current President.
The case is sure to be appealed. But whatever happens on appeal in this case, there is similar litigation throughout the nation, including the lawsuit by San Franscisco.
Thursday, February 23, 2017
Check out Ben Wofford's interview at Politico with David Cole (Georgetown), the ACLU's recently appointed legal director. Cole talks about the ACLU agenda for the Trump presidency, and, drawing on his book, Engines of Liberty, and his essay in the NY Review of Books, how lawyers, academics, and citizens can hold a president accountable and make constitutional change.
Monday, February 13, 2017
The federal district judge in Aziz v. Trump, having previously granted the Motion of the State of Virginia to intervene, has granted a Preliminary Injunction against section 3(c) of the President's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." The judge's order is supported by a 22 page Memorandum Opinion. Recall that the Ninth Circuit has also recently ruled on the matter (refusing to stay a district judge's injunction); our general explainer of the issues is here.
Judge Leonie Brinkema rested her opinion on the Establishment Clause, finding a likelihood of success on the merits on that claim, and thus not reaching the Equal Protection Clause and Due Process Clause or statutory claims.
Judge Brinkema found that the case was justiciable and that Virginia as a state has standing to raise claims based on the injuries to its universities. The judge rejected the contention that the President has unbridled power to issue the EO, stating that
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadﬂdas v. Davis, 533 U.S. 678, 695 (2001).
As to whether or not the EO is a "Muslim ban," the judge relied on public statements by the President and his senior advisors, noting that although the Government disputes the relevancy of the statements, the government does not contest their accuracy. Among the statements the Judge found relevant are candidate Trump's campaign statements and Rudolph Guiliani's January 29, 2017 interview on Fox News.
Judge Brinkema's analysis of the Establishment Clause issue relies heavily on McCreary County v. ACLU of Kentucky in which the Court found unconstitutional the display of the Ten Commandments in a courthouse based in large part of the motive of the state actors. The judge also rejected the argument that the EO could not be a "Muslim ban" because it did not ban all Muslims:
The argument has also been made that the Court cannot infer an anti-Muslim animus because the E0 does not affect all, or even most, Muslims. The major premise of that argument—that one can only demonstrate animus toward a group of people by targeting all of them at once—is ﬂawed. For example, it is highly unlikely that the Supreme Court considered the displays of the Ten Commandments erected by the Kentucky counties in McCreary, which had a localized impact, to be targeted at all persons outside the Judeo-Christian traditions. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefﬁcient the execution. [citations omitted]
Thus, the judge entered a preliminary injunction of 3(c) of the EO against Virginia residents or those affiliated with Virginia's education institutions.
Wednesday, February 8, 2017
Public Citizen, the NRDC, and the Communications Workers of America (AFL-CIO) sued the Trump administration today over President Trump's two-for-one administrative regulation executive order. That EO requires an agency to revoke two regulations for every new regulation it adopts.
The plaintiffs argue that the EO violates the separation of powers, the Take Care Clause, and the Administrative Procedure Act, among others. In short:
To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons. First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.
The plaintiffs say that the EO violates the separation of powers, because "[b]y requiring agencies engaged in rulemaking to consider and take final action or to withhold final action based on factors that are impermissible and arbitrary under the governing statutes, the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies." They say it violates the Take Care Clause, because it "directs agencies to take action contrary to numerous laws passed by Congress." (The plaintiffs also bring claims under non-statutory review of ultra vires action, and the APA.)
The plaintiffs point to harms they'll incur under several statutes, if administrative agencies follow the two-for-one rule. Those include the Motor Vehicle Safety Act and Motor Carrier Safety Act, OSHA, the Mine Safety and Health Act, the Toxic Substance Control Act, and several other environmental protection acts.
The plaintiffs point to harms (for standing purposes) throughout, including organizational harms (by requiring the plaintiffs to shift advocacy priorities) and member harms (because a lack of regulation, where a statute requires it, will harm individual members).
Tuesday, February 7, 2017
The White House and Congress are working at a very quick pace to strike late-promulgated Obama-era administrative regulations under the Congressional Review Act.
That Act allows Congress to pass, and the President to sign, a joint resolution of disapproval to revoke certain administrative regulations. The Congressional Research Service has a backgrounder here, with links to other CRS reports on the Congressional Review Act.
President Trump has issued statements telling Congress that he'll sign four joint resolutions now pending in Congress: (1) a Labor rule on drug testing of unemployment compensation applicants, (2) a BLM reg that establishes procedures to prepare, revise, or amend federal land-use plans, (3) an Ed. rule relating to accountability and state plans under the Elementary and Secondary Educational Act of 1965, an (4) Ed. rule related to teacher preparation.
Congress has considered several resolutions of disapproval since 1996, but overturned just one regulation, a 2000 OSHA rule related to workplace ergonomics standards. President Obama vetoed five resolutions of disapproval, and Congress failed to override the vetoes, so none passed.
With the Republican-controlled House and Senate likely to pass these disapproval resolutions--the Senate minority can't filibuster a CRA disapproval resolution--President Trump's anticipate four overrides will set a record.
Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
Thursday, February 2, 2017
There were some questions whether the seemingly hasty release late Friday afternoon of the Executive Order, Protecting the Nation From Foreign Terrorist Entry Into the United States, popularly called a "Muslim Ban," had been presented to the Office of Legal Counsel (OLC) as required by law.
Pursuant to a FOIA request, an OLC Memo has been released. It's seemingly a boilerplate memo, simply repeating the content of the EO and concluding "The proposed Order is approved with respect to form and legality."
It's a quick read at a bit over one page, with the EO appended afterwards. There is no legal analysis.
For comparison, the recent anti-nepotism OLC Memo, concluding that the President could appoint his son-in-law to a White House position runs about 14 single spaced pages.
Tuesday, January 31, 2017
San Francisco filed suit today against President Trump over his executive order stripping sanctuary cities of federal grants.
San Francisco argues that the EO violates the anti-commandeering rule, that its funding provision turns persuasion into compulsion, and that the funding threat includes federal money that has nothing to do with immigration enforcement--all in violation of federalism principles in the Tenth Amendment.
Recall the EO's federal-funding-for-compliance provision:
the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1371 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.
8 U.S.C. Sec. 1373(a), in turn, prohibits local governments from "sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual."
As an initial matter, San Francisco argues that it actually complies with 1373, because it doesn't prohibit officials from communicating with the feds regarding "citizenship or immigration status," even though it restricts communications on other matters.
The City goes on to argue that 1373, taken together with the EO, commandeers state and local governments in violation of the anti-commandeering rule, because it regulates "States in their sovereign capacity," "limit[s] state authority to regulate internal affairs and determine the duties and responsibilities of state employees," and "ultimately forc[es] States to allow their employees to use state time and state resources to assist in the enforcement of federal statutes regulating private individuals." Moreover, the EO "commandeers state and local governments, violating the Tenth Amendment to the United States Constitution by, inter alia, compelling them to enforce a federal program by imprisoning individuals subject to removal at the request of the Federal government when those individuals would otherwise be released from custody."
As to preenforcement review, San Francisco argues that it "faces the imminent loss of federal funds and impending enforcement action if it does not capitulate to the President's demand that it help enforce federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat." (The complaint also outlines the many other harms the city says it suffers, and will suffer, under the EO.)
Monday, January 30, 2017
Check out Marc Thiessen's piece in WaPo, arguing that Senate Republicans should use the nuclear option--destroy the filibuster--for President Trump's Supreme Court nominee.
Washington State Attorney General Robert Ferguson has filed suit on behalf of the State in Western District of Washington, arguing that President Trump's immigration EO violates various constitutional provisions (including equal protection, due process, and establishment of religion). The State also moved for a nationwide temporary restraining order.
As to standing, the state argues that the EO interferes with its interests in protecting the health, safety, and well-being of residents (including about 7,280 non-citizen immigrants from the seven countries identified in the EO) and its interests in economic activity and growth. (The State points out that it's the home of Microsoft, Amazon, Expedia, and Starbucks, among others, and that those companies rely on the H-1B visa program.)
Here's the NYT report on this unprecedented move.
President Trump fired Acting AG Yates for declining to defend his EO on immigration. The move is stunning, because the DOJ has by tradition enjoyed political independence from the White House. (The White House could have hired private counsel to defend the EO. Congress did just that to defend the DOMA in Windsor after DOJ declined.)
The White House released a statement that said Yates "betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. . . . Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration."
The White House has maintained that the EO was cleared ("as to form and legality") by the Office of Legal Counsel at DOJ. So far, OLC hasn't posted anything.
President Trump issued an Executive Order today requiring agencies to dump two regs for every new reg they issue.
The two-for-one standard seems a little, er, blunt. But, if implemented, it will undoubtedly reduce total federal regulations, helping to fulfill a campaign promise.
In his most recent EO, President Trump wrote that "it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process." The EO requires that "any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations."
The EO also requires that "the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget."
President Trump issued an EO this weekend reorganizing the National Security Council and for the first time adding a member of the President's political team to the Principals Committee. The changes have been all over the news (even if lost behind President Trump's EO on immigration); here's one of the better reports, from Kelly Magsamen at The Atlantic.
The National Security Council is established pursuant to the National Security Act of 1947, 50 U.S.C. Sec. 402. The Act names members of the Council and its committees, but also gives the President some flexibility in organizing it. Presidents have organized and used the NSC very differently, as explained in this Congressional Research Service report, but President Trump's move is the first time that a political operative gets a permanent seat at the table. Magsamen explained:
For the first time in history, a president's chief political strategist will be invited to attend any meeting of the National Security Council and will be a regular member of the highly-influential Principals Committee (PC). Now, politics finding its way into a president's national-security decision-making is nothing new. But it rarely (if ever) gets a seat in the White House Situation Room--for good reason. To place a purely political operative on the NSC--alongside actual Cabinet members with national-security responsibilities or expertise--is an unprecedented move with profound implications for how national-security policies are developed and executed. To be clear, that concern is not confined to Steve Bannon. This would be the case no matter who it was.
Under the EO, the Director of National Intelligence and the chairman of the Joint Chiefs of Staff are off the Principals Committee. Instead, they "shall attend where issues pertaining to their responsibilities and expertise are to be discussed."
Thursday, January 26, 2017
There's a new handy guide collecting resources that will come in handy for ConLawProfs, students, lawyers, and the general public.
In conjunction with the course, Presidential Power, to be offered at University of Washington School of Law by Professors Kathryn Watts and Sanne Knudsen, law librarian Mary Whisner has developed an excellent "Readings and resources concerning presidential power" library guide available here.
Some of the guide tracks the course, and is thus in development, but the "Books about Presidential Power" section is a great place to start understanding the legal, historical, and political dimensions of the issues. The "Useful Reference" portion is a good overview, with a handy link to the Federal Register feed.
Additionally, here are two PBS "crash course" videos - - - from 2015 - - - that are also worth a watch:
Wednesday, January 25, 2017
President Trump's EO today threatening to revoke federal funding for sanctuary cities runs right up against NFIB v. Sebelius, the Supreme Court's Obamacare decision, penned by Chief Justice John Roberts. In other words: It is unconstitutional.
Recall that the Court in NFIB ruled that Obamacare's Medicaid expansion violated federalism principles, because Obamacare threatened a state that declined to expand Medicaid with a potential loss of all federal Medicaid funding. Chief Justice Roberts wrote that the provision was "a gun to the head" of states, and that the threatened loss of Medicaid funding "is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." The Court "saved" the provision, however, by ruling that the federal government could withhold the additional Obamacare funding for Medicaid expansion from any state that declined to expand Medicaid under Obamacare. It just couldn't withhold all Medicaid funding.
Enter Trump's policy on sanctuary cities. President Trump's EO says that it's the policy of Executive Branch to "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law." So far, so good, if NFIB is part of law, as it is.
But the EO goes on to say that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."
This goes much farther than Obamacare's Medicaid expansion: The EO threatens to revoke all federal funding to a jurisdiction, with just a small caveat, and with no overriding "except as mandated by law" clause.
If Obamacare was a "gun to the head," this is much more. (Maybe a nuclear bomb to the head?) Moreover, most of the federal funding at stake has nothing to do with immigration, pretty clearly violating the "germaneness" or "relatedness" requirement from South Dakota v. Dole.
Whatever one thinks about NFIB, or even the animating federalism principles that the Court applied, President Trump's EO goes much, much farther. And whatever one thinks about sanctuary cities, President Trump's approach is quite clearly out of constitutional bounds.
Check out Daniel Hemel, Jonathan Masur, and Eric Posner's (all U. Chicago) piece in the NYT, arguing that Justice Scalia's opinion in Michigan v. EPA could block President Trump from building his wall.
Here's why. Scalia wrote in Michigan that the EPA's authority to issue "appropriate and necessary" regulations meant that it had to do a cost-benefit analysis on proposed rules. President Trump apparently intends to rely on the Secure Fence Act of 2006 as authority to build his wall. But that Act authorizes Homeland Security to take actions to secure the border only if they're "necessary and appropriate."
Hemel, Masur, and Posner argue that Scalia's opinion that "appropriate" includes a cost-benefit analysis should apply to President Trump's wall, too. And if so, they say it'll be very hard, even impossible, to justify it.
Check out Prof. Eric Segall's (Georgia State) piece in the LA Times, arguing that CREW has standing to sue President Trump for an Emoluments Clause violation. We posted on the case here.
Segall says that CREW's harm is greater than the plaintiffs' harms in other cases, where the Court granted standing. Citing Fisher and Massachusetts v. EPA, Segall writes that "[t]here are many examples of plaintiffs in high-profile and important cases having their cases heard despite injuries just as or even more abstract and tenuous than the ones put forward by CREW."
Monday, January 23, 2017
In short, CREW argues that the Trump corporation's business with other countries means that it takes money from them, and because President Trump hasn't divested, "[w]hen Trump the president sits down to negotiate trade deals with these countries, the American people will have no way of knowing whether he will also be thinking about the profits of Trump the businessman."
CREW's standing to sue will certainly be an issue. Here's the abridged version of what CREW has to say about its injury:
Defendant's violations of the Foreign Emoluments Clause have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW's ability to accomplish its mission. CREW has had to counteract Defendant's violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and mission that it has.
There is a direct conflict between Defendant's violations of the Foreign Emoluments Clause and CREW's mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant's violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President's motives in making foreign-policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.
Sunday, January 22, 2017
The New York Times reported today that a group of law profs, Supreme Court litigators, and former White House ethics lawyers will file a suit tomorrow alleging that President Trump is violating the Emoluments Clause. Here's the gist:
The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses, as well as loans for his office buildings from certain banks controlled by foreign governments, and leases with tenants like the Abu Dhabi tourism office, a government enterprise.
The plaintiff in the case is Citizens for Responsibility and Ethics in Washington, CREW.
We've posted on the Emoluments Clause and President Trump here and here (with links to others). Prof. Andy Grewel's (Iowa) paper, recently posted, referenced in the piece, and arguing that payment to a Trump hotel wouldn't violate the Emoluments Clause, is here.