Wednesday, May 8, 2019
President Trump today asserted protective executive privilege to prevent the release of the full (unredacted) Mueller report to the House Judiciary Committee.
The assertion is only provisional and temporary, however, in order to give the White House time to make a final determination whether to assert the privilege. The move thus buys time for the White House against the Committee's subpoena and potentially against the Committee's markup on a resolution holding Barr in contempt of Congress.
AG Barr requested the move in this letter to the White House. As Barr explained, "In cases like this where a committee has declined to grant sufficient time to conduct full review, the President may make a protective assertion of the privilege to protect the interests of the Executive Branch pending a final determination about whether to assert the privilege." (Citing this 1996 OLC opinion.)
The Department made this request because, although the subpoenaed materials assuredly include categories of information within the scope of executive privilege, the Committee's abrupt resort to a contempt vote--notwithstanding ongoing negotiations about appropriate accommodations--has not allowed sufficient time for you to consider fully whether to make a conclusive assertion of executive privilege. The Chairman, however, has indicated that he intends to proceed with the markup session scheduled at 10 a.m. today on a resolution recommending a finding of contempt against me for failing to produce the requested materials.
In these circumstances, you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter.
Tuesday, May 7, 2019
The White House today directed former White House counsel Don McGahn not to turn over documents related to Robert Mueller's investigation to the House Judiciary Committee. The Committee previously issued a subpoena to McGahn for those documents.
Pat Cipollone, counsel to the president, wrote to McGahn's attorney that "the records remain subject to the control of the White House for all purposes," and that they "remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege." Cipollone wrote that Acting Chief of Staff Mick Mulvaney "directs Mr. McGahn not to produce" them. (Notably absent from the letter is the administration's familiar refrain that the subpoena exceeds congressional authority, because it lacks a "legitimate legislative purpose." But perhaps "longstanding constitutional principles" covers that.)
McGahn's attorney, William Burck, then wrote to Chairman Nadler, explaining that McGahn would not comply with the subpoena. "Where co-equal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the Committee and the Executive Branch can reach an accommodation."
The Ninth Circuit ruled in CFPB v. Seila Law LLC that the Consumer Financial Protection Bureau--with its single head, removable only for cause--did not violate the separation of powers. The case aligns with the en banc D.C. Circuit's ruling in PHH Corporation v. CFPB.
The CFPB has been under constant constitutional attack as a legislative encroachment upon executive authority. (If the president can't fire the head of the CFPB at will, the argument goes, then the head of the CFPB encroaches on the president's (absolute, exclusive, unitary) power to execute the law.) The challenges also take aim at Morrison v. Olson. The Court in that case upheld the independent counsel law against a similar separation-of-power challenge. The case has long been a thorn in the side of unitary executive theorists, with many now arguing that Justice Scalia, the lone dissenter in the case, got it right. Despite the attacks, Morrison v. Olson is still good law.
The court in Seila Law said that the CFPB question is resolved by Humphrey's Executor v. United States and Morrison v. Olson. The court explained that Humphrey's Executor validated a "for cause" removal provision for members of the Federal Trade Commission--"an agency similar in character to the CFPB"--because "the agency exercised mostly quasi-legislative and quasi-judicial power, rather than executive powers."
The Court reasoned that it was permissible for Congress to decide, 'in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control.' The for-cause removal restriction at issue there, the Court concluded, was a permissible means of ensuring that the FTC's Commissioners would 'maintain an attitude of independence' from the President's control.
So too with the CFPB:
Like the FTC, the CFPB exercises quasi-legislative and quasi-judicial powers, and Congress could therefore seek to ensure that the agency discharges those responsibilities independently of the President's will. In addition, as the PHH Corp. majority noted, the CFPB acts in part as a financial regulator, a role that has historically been viewed as calling for a measure of independence from Executive Branch control.
The court rejected the argument that the CFPB has more executive power than the FTC in Humphrey's Executor and therefore is a greater intrusion into the president's executive authority. The court said that the Supreme Court has since validated other offices with for-cause removal that have similar executive power (in Morrison and Free Enterprise Fund v. PCAOB).
The court also rejected the argument that the CFPB's single head distinguishes it from the multi-member commission at issue in Humphrey's Executor.
[T]he Supreme Court's decision in Humphrey's Executor did not appear to turn on the fact that the FTC was headed by five Commissioners rather than a single individual. . . . And the Court's subsequent decision in Morrison seems to preclude drawing a constitutional distinction between multi-member and single-individual leadership structures, since the Court in that case upheld a for-cause removal restriction for a prosecutorial entity headed by a single independent counsel.
Monday, May 6, 2019
Treasury Secretary Steven Mnuchin today wrote to House Ways and Means Committee Chair Richard Neal that the Treasury Department would not turn over President Trump's 2013-2018 taxes, as earlier requested by Neal.
Mnuchin argues that Neal's request lacks "a legitimate legislative purpose," a common administration argument in every case where it has declined to comply with a House request or subpoena.
Neal requested the returns pursuant to his authority under 26 U.S.C. Sec. 6103(f), which states,
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives . . . the Secretary [of Treasury] shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.
Despite the "shall," Mnuchin writes that Congress's power "is bounded by Congress's authority under the Constitution, and the Supreme Court has held that the Constitution requires that Congressional information demands must reasonably serve a legitimate legislative purpose."
With no small amount of chutzpah, Mnuchin writes that "on the advice of the Department of Justice, I have determined that the Committee's request lacks a legitimate legislative purpose . . . ."
Mnuchin says that a DOJ legal memo is forthcoming.
Here's the Trump Administration's new rule, rolled out in its final version last week, providing religious "conscience protections" for health-care providers who, because of their religious beliefs, decline to provide abortion-related services and training, sterilization, and assisted-suicide related services, among others. The rule provides that health-care institutions could lose federal funding if they fail to enforce the protections.
While the precise impact is now unknowable, the rule will likely affect access to these services and health-care access for the LBGTQ community.
Judge Emmett G. Sullivan (D.D.C.) ruled last week that congressional members' case against President Trump for violations of the Foreign Emoluments Clause can go forward. The ruling rejects the president's motion to dismiss, and paves the way for declaratory and injunctive relief against the president.
The ruling is not final; it only allows the case to move forward. But given the language and conclusions in this ruling, and in an earlier one that the members had standing to sue, it seems all but inevitable that the court will rule against the president on the merits.
The case involves the members' claim that the president violated the Foreign Emoluments Clause after he failed to seek and obtain the consent of Congress for accepting payments from foreign governments derived from real estate holdings; intellectual property rights from China; payments for hotel rooms and events from foreign diplomats and foreign lobbing groups; licensing fees from foreign governments for "The Apprentice"; and regulatory benefits from foreign governments. Judge Sullivan previously ruled that the members had standing.
The court rejected the president's argument that the Clause "applies only to the receipt of compensation for services rendered by an official in an official capacity or in an employment (or equivalent) relationship with a foreign government, and to the receipt of honor and gifts by an office-holder from a foreign government." (Two examples, according to the president: (1) "a federal official would receive an Emolument if he or she was paid by a foreign government to take certain official actions"; and (2) "an Emolument would  be received if an official became an employee or entered an employment-like relationship with the foreign government, such as if a federal government lawyer provided legal advice and services to a paying foreign power.") The court surveyed the original understanding, the plain text, the history, the interpretation at the adoption, the purpose of the Clause, and Executive Branch practice and concluded that the Clause was much broader than what the president argued. Judge Sullivan concluded that the "plaintiffs have stated a claim against the President for allegedly violating the Foreign Emoluments Clause."
The court also rejected the president's argument that it can't create an implied cause of action under the Foreign Emoluments Clause:
Here, accepting the allegations in the Amended Complaint as true, which the Court must at this junction, the President is accepting prohibited foreign emoluments without seeking congressional consent, thereby defeating the purpose of the Clause to guard against even the possibility of "corruption and foreign influence." Exercising the Court's equitable discretion here is therefore "not in derogation of the separation of powers, but to maintain their proper balance."
Finally, the court ruled that the plaintiffs' requested injunctive relief didn't violate the separation of powers. It said that it had authority to enjoin the president in matters involving an exercise of the president's "ministerial" duties, and that getting congressional approval was "ministerial."
The Trump Administration reversed its earlier position and argued before the Fifth Circuit last week that the entire Affordable Care Act must fall. According to the administration, that's because (1) the individual mandate is now unconstitutional and (2) the rest of the Act is inseparable from it and therefore must also fall.
The move was expected. With it, the administration now supports the district court's sweeping ruling that struck the entire Act.
The administration argues first that the individual plaintiffs have standing to lodge this challenge. The administration claims that these "individual plaintiffs are directly subject to the individual mandate and have established concrete financial injuries from it." It argues that it doesn't matter that there's now no means of enforcing the mandate (after Congress set the tax penalty at $0), because the plaintiffs have been harmed by higher insurance prices and fewer insurance choices resulting from the (inseverable) guaranteed-issue and community-rating provisions.
The administration goes on to argue that the mandate is now unconstitutional, because the tax penalty is set at $0. The administration claims that the $0 tax penalty transforms the mandate from a congressional action based on its taxing authority (held valid in NFIB) to a congressional action based on its Commerce Clause authority (held invalid under NFIB). As a result, the administration claims that the mandate is unconstitutional.
Finally, the administration claims that all other provisions of the Affordable Care Act are inseverable from the mandate, and therefore must fall, too. The administration points to congressional intent and Court rulings that the guaranteed-issue and community-rating provisions are tied up with the individual mandate; and it argues that all other ACA provisions are, too, because their operation would fundamentally change from the ways that Congress intended when the mandate and the guaranteed-issue and community-rating provisions fall.
The administration's position, if accepted by the Fifth Circuit, would mean that the entire ACA goes away, including the individual mandate; the guaranteed-issue and community-rating provisions; and the health-care exchanges, coverage limits, requirements to cover dependent children, and restrictions on high-cost insurance plans.
Friday, May 3, 2019
The First Circuit ruled that the state of Massachusetts has standing to sue the Trump administration to halt implementation of its rules establishing religious and moral exemptions to the Affordable Care Act's "contraception mandate."
Those rules allow covered employers to get an exemption from the ACA's requirement that employers provide certain contraceptive services.
The mandate is already subject to nationwide injunctions from other cases (in which the courts have also found valid standing for challenging states; we posted most recently here.) This is just the latest case to move forward.
The court said that Massachusetts sufficiently demonstrated a fiscal harm. Here's why: (1) the state demonstrated that some employers in the state are likely to use the exemptions and drop employees from contraception coverage; (2) the state demonstrated that at least some of those employees are likely to turn to the state for contraception and related services; and (3) this "cause and effect" chain is based on "probable market behavior."
The court also ruled that the state showed causation and redressability--the former for the reasons above; the latter because halting the exemptions would also halt this chain of causation.
The ruling is only preliminary. It only allows the case to move forward on the merits. But as we said: the rules are already subject to nationwide injunctions, and this case won't directly affect those injunctions.
Thursday, May 2, 2019
Trump Administration officials continue to thwart efforts at congressional oversight, citing separation-of-powers and congressional authority, among others, as the basis for refusing to comply with requests for testimony and documents. The particular reasons for declining to comply vary depending on the request, however, with one consistent theme: The Administration repeatedly claims that congressional requests exceed Congress's oversight authority. (It also claims that members of Congress previously adopted different positions with regard to congressional oversight of a different president, that the administration has already provided plenty of material, and that requests are politically motivated. These, of course, are not constitutional reasons not to comply.)
We posted here on the White House's arguments in support of its decision to decline to make Steve Miller available for testimony. We posted here on President Trump's lawsuit against his accountant to halt compliance with a congressional subpoena for his financial records.
Here are four new cases this week:
White House Security Clearance Process
Pat Cipollone, counsel to president, wrote to House Oversight Committee Chairman Elijah Cummings that it would not comply with Committee requests for files related to the White House security clearance process. Cipollone argued that "the Committee's inquiry is also legally unsupportable for several reasons." First, the Committee's efforts to "investigat" "specific individuals" is outside the Committee's oversight authority. Next, the Committee's request for individual files "has no legitimate legislative purpose." Third, the Committee seeks documents that are "at the heart of executive privilege," that reflect internal executive branch deliberations, that, if disclosed, "would undermine the investigative process, expose sensitive information that could jeopardize the FBI's ability to conduct future investigations, and raise serious separation of powers concerns," and that "implicate sensitive information." Finally, "the Committee appears to be putting public servants at risk in order to advance a partisan political agenda."
The Full Mueller Report and Materials
Assistant AG Stephen Boyd wrote to House Judiciary Chairman Nadler that DOJ would not turn over the unredacted Mueller report and supporting materials. Boyd cited past Department practice, and concluded that
Against this backdrop of the Department's compelling need to protect the autonomy and effectiveness of its investigations, as well as the extraordinary steps the Attorney General has already taken to accommodate the Committee's needs, the Committee has not articulated any legitimate legislative purpose for its request for all of the Special Counsel's investigative files. The Committee has no legitimate role in demanding law enforcement materials with the aim of simply duplicating a criminal inquiry--which is, of course, a function that the Constitution entrusts exclusively to the Executive Branch.
Moreover, "disclosing grand-jury information in response to congressional oversight requests is prohibited by [Rule 6e of the Federal Rules of Criminal Procedure]."
Barr's Testimony Before the House
AG Barr refused to show up at his House Judiciary Committee hearing today, apparently because he didn't like Nadler's rule that Committee attorneys would also question him. Best we can tell, he apparently thinks this is a separation-of-powers problem, because only members should be able to question him.
Trump's Suit Against Deutsche Bank and Capital One
President Trump filed suit against Deutsche Bank and Capital One to stop them from complying with congressional subpoenas for his financial records. The suit is similar to the one he filed against his accountants. It argues that the subpoenas exceed Congress's oversight authority, because they lack a "legitimate legislative purpose," and violate the Right to Financial Privacy Act.