Tuesday, April 23, 2019

SCOTUS Hears Oral Argument on Census Citizenship Question

The United States Supreme Court heard oral arguments  in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful. The constitutional issues in the case include the standing of the challengers and the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2.  The equal protection argument has seemingly receded into the background. Taking center stage are the nonconstitutional issues centering on the Administrative Procedure Act.

Recall that the case was originally before the Court on an order requiring Secretary Wilbur Ross to submit to a deposition.  However, Recall that in January in New York v. United States Department of Commerce, United States District Judge Jesse Furman decided the case without the Secretary's evidence, finding that without it there was no proof of discriminatory intent sufficient for an equal protection challenge.  Nevertheless, Judge Furman vacated and enjoined the implementation of the decision of Department of Commerce Secretary Wilbur Ross adding a citizenship question to the 2020 census questionnaire, holding that the Secretary's decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.  

Recall also that in March California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.

Arguing for the United States Department of Commerce, Solicitor General Noel Francisco was quickly interrupted by Justice Sotomayor in his very first description of the facts  — that "Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years" — when she noted that the citizenship question was not part of the short survey that is at issue in the present case.  In short, Solicitor General Francisco's argument was that the Secretary has wide discretion to put whatever questions he'd like on the census for whatever reason.  While Justices Kavanaugh, Gorsuch, Alito, and Chief Justice Roberts seemed sympathetic to this wide discretion, especially in their subsequent questioning, Justices Sotomayor and Kagan characterized the Secretary's decision as a "solution in search of a problem." 

Justice Kagan: . . . [as] Justice Sotomayor was talking about was that it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. Makes it clear that he's going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.

So you can't read this record without sensing that this -- this need is a contrived one. Nobody had -- there have been lots of assistant attorney general in the Civil Rights Division that have never made a plea for this kind of data.

The Solicitor General of New York (and former Attorney General of New York) Barbara Underwood argued that there was nothing before the Secretary to support the notion that this would assist in making determinations under the Voting Rights Act. Justice Kavanaugh interestingly asked Underwood about United Nations recommendations for citizenship questions, a topic which Douglas Letter came back to during his argument, representing the United States House of Representatives as amicus curiae in support of New York and the other respondents, stating that other nations may not have an "actual enumeration" Clause in their constitutions, and stressing the importance of accurate census data to the House of Representatives given its purpose in representation.

Dale Ho, arguing for New York Immigration Coalition, discussed the intersection between the Voting Rights Act (VRA) and the census, explaining how the Census Bureau alters and approximates information.

Assuming the Court does not reach the constitutional issues, the heart of the case under the APA will be how much deference the Court is willing to afford to the Secretary.  This deference to the Secretary's discretion was interestingly implicated in the argument concerning the question of the Congressional role, with Douglas Letter pointing out that

The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore . . .  They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation going on. And, I repeat, this is a matter of public record.

Given recent other matters of public record in which government officials are refusing to come before Congress, more may be at stake in this case than the APA, including separation of powers issues.

April 23, 2019 in Congressional Authority, Courts and Judging, Elections and Voting, Executive Authority, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Monday, April 22, 2019

Trump Sues to Block Congressional Subpoena for Financial Records

President Trump filed suit today to block a House committee subpoena to Trump's accountant, Mazars USA, LLP, for Trump's financial records. The move is a response to House Oversight and Reform Committee Chair Elijah Cummings's April 12 subpoena for records from 2011 to 2018.

The memo supporting the subpoena claims that "[t]he Committee has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clause of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities."

President Trump argues in the filing that the subpoena exceeds the Committee's authority, because it is not in furtherance of a "legitimate legislative purpose"; that it violates the separation of powers by seeking to enforce the law, not legislate; and that it's just part of a larger House effort to investigate "anyone with even the most tangential connection to the President" in order to embarrass him. He notes that the time-period covered by the subpoena includes time when he was not yet in office.

In support of his claims, Tump's filing cites Eastland v. U.S. Servicemen's Fund. That's a little surprising, given the deference to Congress that oozes throughout that ruling. Recall that Eastland tested a congressional committee's subpoena of a bank for financial records of a private non-profit, U.S. Servicemen's Fund, that "further[ed] the welfare of persons who have served or are presently serving in the military." The Court ruled that the subpoena was a valid exercise of congressional authority because it fell within the "sphere of legitimate legislative activity," that the Speech and Debate Clause protected against the suit in order to preserve "the integrity of the legislative process by insuring the independence of individual legislators," and that the purposes behind the subpoena didn't matter. Moreover, the U.S. Servicemen's Fund challenged the subpoena under the First Amendment, not just under the separation of powers. The Court said that this challenge "ignores the absolute nature of the speech or debate protection."

Applying well established and deferential standards for congressional investigations and subpoenas--and in particular the Eastland case--to Cummings's subpoena, it's hard to see how Trump wins, at least on his arguments. But winning on the merits may not be the (only) thing that Trump is trying to do. With this move, the administration signals (again) that it's going to fight tooth and nail to resist House Democrats' efforts at oversight, tie them up in court, and even try to run the clock.

April 22, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News | Permalink | Comments (0)

Thursday, April 18, 2019

Mueller Affirms that President is Not Above the Law, Even for Official Actions

Among its many findings and conclusions, Special Counsel Robert Mueller's report concluded that the Constitution does not prohibit the application of federal obstruction-of-justice laws to the president, even when the president is executing Article II authorities (by terminating FBI Director Comey or by closing an investigation (as an act of prosecutorial discretion)).

In other words: The president is not above the law, or at least this kind of law, simply by virtue of acting as the president.

The conclusion is at odds with claims in a June 23, 2017, letter from President Trump's personal attorney to the the Special Counsel's Office.

The report does not make "a traditional prosecutorial judgment," however, citing "difficult issues that would need to be resolved." These "difficult issues" probably include the hotly disputed question whether a sitting president can be prosecuted. If so, the report may provide an at-least-theoretical path for post-presidential prosecution of Trump.

Using separation-of-powers analysis, Mueller's report, vol. 2, starting at page 168, balances (1) the effect of obstruction-of-justice statutes on the president's ability to perform his Article II responsibilities, (2) whether the obstruction-of-justice statutes are justified by "an overriding need to promote objectives within the constitutional authority of Congress," and (3) "whether the separation-of-powers doctrine permits Congress to take action within its constitutional authority notwithstanding the potential impact on Article II functions."

As to (1), the report says that obstruction-of-justice statutes applied to the president won't "seriously hinder the President's performance of his duties." That's because these statutes "do not aggrandize power in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct only when it is taken with the 'corrupt' intent to obstruct justice." "The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests."

As to (2), the report says that Congress acts well within its powers when it outlaws obstruction of justice in order "to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials."

As to (3), the report says that "[a] general ban on corrupt action does not unduly intrude on the President's responsibility to 'take Care that the Laws be faithfully executed," because "the concept of 'faithful execution' connotes the use of power in the interest of the public, not in the office holder's personal interests."

In sum, contrary to the position taken by the President's counsel, we conclude that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction of justice statutes would not impermissibly burden the President's performance of his Article II functions to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person--including the President--accords with the fundamental principle of our government that "[n]o [person] in this country is so high that he is above the law.

April 18, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, April 17, 2019

Trump Vetos WPA Resolution on Yemen

As expected, President Trump yesterday vetoed Congress's War Powers Act resolution calling for the removal of U.S. armed forces from hostilities in Yemen that haven't been authorized by Congress. We posted here, with additional links and resources, when the House passed it.

The president's veto message mostly objected to the resolution based on policy. But it contained some constitutional complaints, too:

Since 2015, the United States has provided limited support to member countries of the Saudi-led coalition, including intelligence sharing, logistics support, and, until recently, in-flight refueling of non-United States aircraft. All of this support is consistent with the applicable Arms Export Control Act authorities, statutory authorities that permit the Department of Defense to provide logistics support to foreign countries, and the President's constitutional power as Commander in Chief. . . .

S.J. Res. 7 is also dangerous. The Congress should not seek to prohibit certain tactical operations, such as in-flight refueling, or require military engagements to adhere to arbitrary timelines. Doing so would interfere with the President's constitutional authority as Commander in Chief of the Armed Forces, and could endanger our service members by impairing their ability to efficiently and effectively conduct military engagements and to withdraw in an orderly manner at the appropriate time.

April 17, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0)

Monday, April 15, 2019

Daily Read: Mueller Report and Redactions

As many wait for the Mueller Report now promised for Thursday, questions regarding the redactions mount. Two articles are worth a read.

 Jenessa Calvo-Friedman, writing from the ACLU perspective, argues that The American Public Deserves to See the Mueller Report With as Few Redactions as Possible and outlines the types of possible redactions and arguing that there should be as few redactions as possible.   She concludes that in any event, Congress must see the report without any redaction.

Professor Rick Hasen provides a list for looking at the redacted report, The Seven Things to Look for When Reading the Redacted Mueller Report, with number seven being the ultimate and most difficult:

To what extent does it look like Barr is trying to protect Trump and Trump’s family, such as Donald Trump Jr.? Despite his expected redactions, has Barr made it possible to evaluate Mueller’s reasoning or the evidence collected?

Page1-463px-Updated_Assessment_and_Recommentation_to_redacted_in_the_Case_of_Detainee_ISN_0061.djvu

 

April 15, 2019 in Congressional Authority, Current Affairs, Executive Authority, Executive Privilege, Foreign Affairs | Permalink | Comments (0)

Saturday, April 6, 2019

Can Congress Get the President's Tax Returns?

House Ways and Means Committee Chairman Richard Neal this week formally asked the IRS for President Trump's tax returns for tax years 2013 through 2018, arguing that statutory authority and the Committee's legislative and oversight responsibilities require the IRS to turn over these returns. William S. Consovoy, President Trump's private lawyer, responded that "Chairman Neal cannot legally request--and the IRS cannot legally divulge--this information."

So who's right? In short, probably Neal. And the Internal Revenue Code may authorize even wider distribution--to the full House and Senate (and public). But given the time it'll take to work through the courts, it all might not matter.

Start with the statutory text. Section 6103(f)(1) of the Internal Revenue Code provides that, upon written request of the Chair of the House Ways and Means Committee, Joint Committee on Taxation, or Senate Finance Committee, the Treasury Secretary "shall furnish" the requested tax returns or return information to the relevant committee. But Section 6103(f)(1) information can only be provided when the requesting committee is "in closed executive session." (See more below on this.)

That plain language would seem to answer it, but there may be more.

As a general matter, Congress can only seek information to further a "legislative purpose" or a valid oversight function, or another constitutionally-granted function (like impeachment). The standard here is quite loose; the courts have only restricted Congress from seeking information when it moves to "expose for the sake of exposure." That's why Chairman Neal wrote in his letter the "legislative purpose" of his request:

Consistent with its authority, the Committee is considering legislative proposals and conducting oversight related to our Federal tax laws, including, but not limited to, the extent to which the IRS audits and enforces the Federal tax laws against a President. Under the Internal Revenue Manual, individual income tax returns of a President are subject to mandatory examination, but this practice is IRS policy and not codified in the Federal tax laws. It is necessary for the Committee to determine the scope of any such examination and whether it includes a review of underlying business activities required to be reported on the individual income tax return.

Consovoy counters that Neal's true purpose is pure politics. He points to the timing of the request, the political pressure on House Democrats to press for release of the returns, and the scope of the request in relation to Neal's stated purpose ("[W]hy is he seeking tax returns and return information covering the four years before President Trump took office? Why is he not requesting information about the audits before President Trump took office? Why is he not requesting information about audits of previous Presidents?")

But it's unlikely that the courts would look behind the stated purposes of Neal's request to make inferences about the timing or the politics. And while the courts haven't specified a particular degree of scrutiny for determining the scope of congressional "legislative purpose" or oversight authority (beyond the loose standards above), it's highly unlikely that they'd adopt some form of heightened scrutiny that would require a congressional inquiry to be more precisely tailored to its purposes (as suggested by Consovoy's series of questions about the scope of the inquiry). If so, the courts could derail almost any congressional inquiry based on its scope. After all, when, if ever, is a congressional inquiry precisely tailored to meet its purposes? They're almost always over- or under-inclusive.

Prof. Andy Grewal makes better arguments about Congress's legislative purposes here and here. In the end, it'll come down to the deference that courts are wiling to give Congress in fashioning its own requests to serve its own legislative purposes. My own money is on greater deference to Congress. Why? Any other result would put nearly any congressional request for information on the chopping block.

Consovoy also argues that the request violates President Trump's privacy interests. This could be an important factor, to be sure, but as the Congressional Research Service explains in a recent analysis, this is a balancing test, and lower courts have upheld mandatory disclosure laws aimed at politicians in the interests of deterring corruption and conflicts of interest, and enhancing public confidence in government integrity. Moreover, there's nothing special about President Trump's privacy (as opposed to anybody else's privacy). (Indeed, if anything, he may have less privacy, given that he voluntarily assumed his public role, and given that every other president has released tax returns.) So if the IRC validly requires the Commissioner to turn over tax returns of anyone, then it also requires the Commissioner to turn over tax returns of President Trump. (Of course, if that provision is an unconstitutional violation of privacy for anyone, then it's probably an unconstitutional violation of privacy for President Trump, too. But that's almost surely not the case.)

Consovoy also vaguely refers to the separation of powers as a constraint against Neal's request. Best I can tell, the argument is that the executive branch, not Congress, has enforcement authority for the Internal Revenue Code, and that Neal's request would interfere with ongoing IRS (executive branch) "examination" of the returns. (Consovoy also cites due process as a reason not to comply with Neal's request.) But there's nothing that says Congress can't engage in lawmaking or oversight when the administration is also looking into a matter. Indeed, it does it all the time. It'd be a separation-of-powers problem if Congress couldn't do this. (Same for due process. If it were a due process violation for Congress to consider legislation or engage in oversight in a matter just because the executive branch is engaged in enforcement, Congress would be seriously constrained in what it could do. And the executive could control and preempt what Congress could do, simply by opening an enforcement action.)

Finally, Consovoy argues that Neal's request is retaliation for political speech in violation of the First Amendment. This goes to Consovoy's larger this-is-all-politics point, and, without more, probably has little traction. (If it were otherwise, the House could engage in nearly no oversight of the Trump Administration.)

The CRS report goes a step further and says that Neal's Committee could probably re-release the tax returns to the full House. That's because Section 6103(f) goes on to say that "[a]ny return or return information obtained by or on behalf of such committee pursuant to the provisions of this subsection may be submitted by the committee to the Senate or the House of Representatives, or both." Importantly, unlike the limitation on Section 6103(f)(1), there is no "executive session" limitation on this re-release. (The "legislative purpose" requirement would probably still apply. But if the Committee satisfied it for its request, then the re-release to the full House would probably also satisfy it.) If, pursuant to this section, a member read the returns on the House or Senate floor, or submitted them for inclusion in the Congressional Record, their conduct would probably be protected by the Speech or Debate Clause.

Still, the whole question could well be academic. By the time this all works its way through the courts, President Trump may no longer be in office.

April 6, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, April 4, 2019

House Passes WPA Resolution Ending US Support for Yemen War, Sends to White House (for likely veto)

The House today passed a joint resolution under the War Powers Act calling for the removal of U.S. armed forces from hostilities in Yemen that haven't been authorized by Congress. The Senate previously passed the measure.

The House's approval marks the first time that both chambers have approved a resolution under the WPA. President Trump says he'll veto it.

Here's the text of the resolution. Here's a Congressional Research Service report on the history and uses of the WPA, updated just last month.

Section 5(c) of the WPA (50 U.S.C. Sec. 1544(c)) says that "at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs."

Under the resolution passed today,

Congress hereby directs the President to remove United States Armed Forces from hostilities in or affecting the Republic of Yemen, except United States Armed Forces engaged in operations directed at al Qaeda or associated forces, by not later than the date that is 30 days after the date of the enactment of this joint resolution . . . and unless and until a declaration of war or specific authorization for such use of United States Armed Forces has been enacted. For purposes of this resolution, in this section, the term "hostilities" includes in-flight refueling of non-United States aircraft conducting missions as part of the ongoing civil war in Yemen.

That last bit is an acknowledgment that there's some dispute between Congress and the White House as to what constitutes "hostilities," and an effort to clarify. The CRS report talks a little about this starting on page 61.

 

 

April 4, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0)

Saturday, March 9, 2019

Ninth Circuit Strikes Limit on Asylum Appeals, Rules that it Violates Suspension Clause

The Ninth Circuit ruled in Thuraissigiam v. USDHS that the statutory limitation on federal habeas corpus jurisdiction for asylum applicants in deportation proceedings violates the Suspension Clause. The ruling sends the case back to the district court to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order.

The ruling is a huge victory for asylum seekers in deportation proceedings. It means that Thuraissigiam and other aliens in expedited removal but who seek asylum have access to federal court to challenge a denial of asylum on the merits, and not just on narrow technicalities--at least in the Ninth Circuit.

The case arose when Vijayakumar Thuraissigiam, a native and citizen of Sri Lanka, entered the U.S. through Mexico. He was detained by a Customs and Border Patrol Officer just north of the border and placed into expedited removal proceedings. After Thuraissigiam requested asylum (based on a fear of persecution in Sri Lanka), CBP referred Thuraissigiam for an interview with an asylum officer. The officer denied asylum; the officer's supervisor affirmed; and an immigration judge affirmed.

Thuraissigiam then filed a habeas petition in federal court, arguing that his credible-fear screening deprived him "of a meaningful right to apply for asylum" and other relief in violation of federal law, and that the asylum officer and IJ violated his due process rights by "not providing him with a meaningful opportunity to establish his claims, failing to comply with the applicable statutory and regulatory requirements, and in not providing him with a reasoned explanation for their decision."

The district court dismissed the case for lack of subject matter jurisdiction. The court pointed to 8 U.S.C. Sec. 1252(e), the habeas jurisdictional hook for individuals in expedited deportation proceedings, and noted that the provision only authorized a federal court to determine (1) whether a petitioner is an alien, (2) whether the petitioner was ordered removed, and (3) whether the petitioner could prove that he or she is an alien lawfully admitted for permanent residence, as a refugee, or has been granted asylum. The court ruled that Thuraissigiam's case didn't fall into any of the three categories, and so dismissed it.

The Ninth Circuit agreed that Thuraissigiam's case didn't fall into any of the three categories, and that the district court therefore lacked statutory habeas jurisdiction over his claim. But the court went on to hold that Section 1252(e) violated the Suspension Clause.

The court, looking to Boumediene and St. Cyr, ruled first that Thuraissigiam, as an alien who was arrested in the United States, could invoke the Suspension Clause. The court ruled next that the Suspension Clause requires review of Thuraissigiam's claims, and that Section 1252(e), in disallowing review of his claims, violates the Clause. In particular, the court noted that Section 1252(e) prevented any judicial review of whether DHS complied with the procedures in an individual case or applied the correct legal standard.

The court declined to invoke the constitutional avoidance canon, because, it said, Section 1252(e) cannot bear a reading that avoids the constitutional problems that it creates.

The court remanded the case to the district court to consider Thuraissigiam's legal claims.

March 9, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, February 20, 2019

Check it Out: Bagley on ACA Cost-Sharing at the Court of Federal Claims

Check out Nick Bagley's two-part series at Take Care on the cases coming out of the Court of Federal Claims that say that the government has to pay up its cost-sharing obligation to insurers on the Affordable Care Act exchanges--even though Congress didn't appropriate funds to do so.

The short version: Three different judges have now ruled that the ACA created an obligation on the part of the government to make the cost-sharing payments to insurers on the exchange; that Congress's refusal to appropriate funds (without more) doesn't change that obligation; and that the obligation is now enforceable in court (under the Tucker Act).

The rulings could mean that the government owes insurers about $12 billion a year.

The rulings may seem in tension with Judge Collyer's (D.D.C.) ruling that President Obama lacked authority to make cost-sharing payments without a congressional appropriation. But they're not: These cases say that the government created an obligation in the ACA, and that it must now make good on that obligation, one way or another. Congress's refusal to appropriate money in the particular cost-sharing line item (which was the basis of Judge Collyer's ruling) only means that Congress has to either fund that line or find a new source to pay the insurers. (The Court of Federal Claims notes that judgments from that court come from the Judgment Fund, a permanent, indefinite appropriation to pay judgments against the United States. So if the rulings stick, Congress wouldn't have to do anything.)

As to that second step---that Congress's refusal to appropriate funds doesn't change the underlying obligation--here's how one judge explained it:

Here, Congress has had ample opportunity to modify, suspend, or eliminate the statutory obligation to make cost-sharing reduction payments but has not done so. . . . Congress has never enacted any such appropriation riders with respect to cost-sharing reduction payments, even when cost-sharing reduction payments were being made--during both the Obama and Trump administrations--from the permanent appropriation for tax credits . . . . Thus, the congressional inaction in this case may be interpreted contrary to defendant's contention, as a decision not to suspend or terminate the government's cost-sharing reduction payment obligation. 

In short, Congress's failure to appropriate funds to make cost-sharing reduction payments through annual appropriations acts or otherwise does not reflect a congressional intent to foreclose, either temporarily or permanently, the government's liability to make those payments.

Now the interesting question is whether the insurers' mitigation efforts (through "silver loading") mean that the government doesn't have to pay, or at least doesn't have to pay as much. Check out Bagley on this.

February 20, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, February 19, 2019

States Sue to Stop Trump's "Emergency" Wall

Sixteen states filed suit in the Northern District of California to halt President Trump's emergency action to reprogram federal funds to build the wall. The lawsuit follows an earlier suit filed by Public Citizen, and a third one filed by environmental groups. (Both of those are in the D.C. District.)

The suits all raise similar claims (there is no "emergency" under the National Emergencies Act, and, even if there were, it doesn't unlock the authorities that President Trump is using to reprogram funds, and other cited authorities are unavailable) and ask for similar relief (a declaration that President Trump's action is unlawful, and an injunction to halt it). 

In addition to declaring an emergency under the NEA, President Trump identified three sources of funds for reprogramming. First, 10 U.S.C. Sec. 2808 allows the Secretary of Defense to "undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces." (Section 2808 funds are only available upon the President's declaration of an emergency under the NEA, so the President's emergency declaration "unlocks" those funds.) Second, 10 U.S.C. Sec. 284 authorizes the Secretary of Defense to support certain counterdrug actions on the request of another department or agency or a state or local official, including "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." (Section 284 allows the Secretary of Defense to reprogram funds without an emergency declaration under the NEA.) Finally, 31 U.S.C. Sec. 9705 provides that after reserves and required transfers, the Treasury Forfeiture Fund's "unobligated balances . . . shall be available to the Secretary . . . for obligation or expenditure in connection with the law enforcement activities of any Federal agency. . . ." (Section 9705 also allows action without a presidential emergency declaration.) (The proclamation also invokes the Ready Reserve provision, allowing the Secretary of Defense, upon the President's declaration of an emergency, to call up "any unit, and any member not assigned to a unit to serve as a unit . . . for not more than 24 months.")

According to the White House Fact Sheet, President Trump's action authorizes reprogramming of funds (1) from the Treasury Forfeiture Fund (Section 9705, about $601 million), (2) counterdrug activities (Section 284, up to $2.5 billion), (3) and military construction (Section 2808, up to $3.6 billion). Importantly, "[t]hese funding sources will be used sequentially and as needed."

The states argue first that there is no emergency under the NEA, and that President Trump therefore lacked authority to declare one. The complaint details the ton of evidence, much from the government itself, on illegal immigration across the southern border, crime by illegal immigrants, and drugs that cross the southern border and argues that this simply doesn't add up to an NEA "emergency."

The states claim that even if there is an emergency, the President can't unlock federal funds under Section 2808. That's because building the wall doesn't "require[] use of the armed forces." Moreover, the President can't reprogram counterdrug money under Section 284, because "the proposed border wall will not assist in blocking 'drug smuggling corridors.'" Finally, the President can't tap Treasury Forfeiture Funds, because the statutory criteria under that statute aren't satisfied. 

The states also argue that the administration violated the National Environmental Protection Act, because it failed to prepare an Environmental Impact Assessment for the wall. 

The states claim that the President's actions violate the separation of powers, encroach upon Congress's spending power, and violate the relevant statutes.

As to standing, the states argue that they'll lose federal funds and the resulting economic activity when the administration reprograms money already allocated to other projects:

If the Administration were to use the funding sources identified in the Executive Actions, Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States. The redirection of funding from authorized military construction projects located in Plaintiff States will cause damage to their economies. Plaintiff States will face harm to their proprietary interests by the diversion of funding from military construction projects for the States' national guard units. And the construction of a wall along California's and New Mexico's southern borders will cause irreparable environmental damage to those States' natural resources.

 

February 19, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, February 18, 2019

First Circuit Rules Puerto Rican Debt Restructuring Board Unconstitutional

The First Circuit ruled last week that the congressionally created Board to oversee the restructuring of Puerto Rico's debt was constituted in violation of the Appointments Clause. The court, however, stopped short of halting the Board's federal lawsuit to initiate debt adjustment proceedings on behalf of Puerto Rico, giving the government 90 days to cure the appointments defect.

The ruling in Aurelius Investment v. Commonwealth of Puerto Rico puts the ball in the government's court to get the Board members properly appointed before the debt readjustment proceeding can move forward.

The case involves the Financial Oversight Management Board created under the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"). Congress created the Board to provide independent supervision and control over Puerto Rico's financial affairs and to help the Island "achieve fiscal responsibility and access to capital markets." Under the Act, Board members are appointed by the President from a slate of candidates created by congressional leadership. (If the President doesn't select a member from one of these lists, the Senate has to confirm the President's nominee. But current Board members all came from a list, without Senate confirmation.)

The Board filed for debt readjustment on behalf of Puerto Rico. Debt-holders sought to dismiss the suit, arguing that the Board lacked authority to file, because Board members weren't appointed pursuant to the Appointments Clause. The Board responded that Congress had authority to constitute the Board this way under the Territorial Clause.

The First Circuit ruled against the Board. The court first acknowledged that the Territorial Clause gives Congress broad authority over U.S. territories, but rejected the argument that the the Clause is so powerful as to allow Congress to bypass the Appointments Clause. The court applied the specific-governs-the-general canon and held that the specific Appointments Clause prevails over the more general Territorial Clause. Moreover, the court said that the Territorial Clause doesn't allow Congress to override the requirement of other structural provisions, like presentment (under the Presentment Clause); so, too, it it doesn't allow Congress to override the requirements of the Appointments Clause.

The court also rejected the claim that the nondelegation doctrine, which operates more flexibly in territories (allowing Congress wider berth to delegate lawmaking authority), gives Congress room to bypass the Appointments Clause. Moreover, the court rejected arguments based on congressional control over the D.C. courts, and declined to read the Insular Cases as creating an Appointments Clause-free-zone in Puerto Rico.

As to the Appointments Clause itself, the court ruled that Board members are "officers" and therefore subject to the Clause, because the positions are "continuing," the incumbent exercises significant authority, and that authority is exercised pursuant to the laws of the United States. On this last point, the court noted that "[e]ssentially everything [Board members] do is pursuant to federal law." The court distinguished high-level Puerto Rican officials who are elected by Puerto Ricans, even though their ultimate authority traces to Congress. "So the elected Governor's power ultimately depends on the continuation of a federal grant. But that fact alone does not make the laws of Puerto Rico the laws of the United States, else every claim brought under Puerto Rico's laws would pose a federal question."

Finally, the court held that Board members are "principal" officers, because, under Edmond, "[t]hey are answerable to and removable only by the President and are not directed or supervised by others who were appointed by the President with Senate confirmation." As such, they must be nominated by the President, with advice and consent of the Senate.

The court declined to dismiss the Board's Title III petitions, however, because "[a]t a minimum, dismissing the Title III petitions and nullifying the Board's years of work will cancel out any progress made towards PROMESA's aim of helping Puerto Rico 'achieve fiscal responsibility and access to the capital markets.'" Moreover, the court stayed its ruling for 90 days to give the government time for Senate confirmation.

February 18, 2019 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, February 16, 2019

Public Citizen Sues Trump Over "Emergency" Wall Action

Public Citizen and the Frontiera Audubon Society sued President Trump for declaratory and injunctive relief yesterday over the president's declaration of a national emergency in order to reallocate funds to build the wall. The lawsuit, filed in the District of Columbia, is the first of (undoubtedly) many.

The lawsuit, Alvarez v. Trump, alleges that President Trump unlawfully invoked the National Emergencies Act because there is, in fact, no emergency, and that he unlawfully reallocated funding from Defense Department construction projects and drug interdiction efforts to build the wall. The complaint details the government's now well known statistics about immigration at the Southern border, and related matters, and quotes from President Trump's press conference yesterday: "I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster"--a statement seemingly at odds with an "emergency." (But remember that the Supreme Court, in Trump v. Hawaii, upheld the travel ban under the President's authority to suspend entry of aliens if entry "would be detrimental to the interests of the United States," under the INA. In doing so, the Court managed to disregard so much of what President Trump actually said about the travel ban--which had nothing to do with "the interests of the United States." This suggests that the Supreme Court will be quite deferential to the President when the wall case gets to the high Court.)

The complaint alleges that the President violated the separation of powers by encroaching on Congress's appropriations power. In short: Congress only appropriated $1.35 billion for the wall; President Trump invoked the NEA to reallocate funds from other pots, even though there was no emergency; in so reallocating appropriated funds, President Trump encroached on Congress's power of the purse.

The complaint does not allege that the NEA's definition of "emergency" delegates too much lawmaking authority to the executive in violation of the nondelegation doctrine.

The plaintiffs include landowners along the border, who have been told that the government would use their land to build a wall, if it got the money to do so.

February 16, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, February 12, 2019

Absent "Emergency," Can Trump Shift Money for the Wall?

In a word: No. At least not without specific congressional authorization.

Remember that President Obama tried a similar move with the cost-sharing reduction (CSR) payments to insurance companies under the Affordable Care Act. The CSR was designed to reimburse insurance companies for keeping costs low for certain purchasers on the exchanges. But Congress zero-funded the CSR line-item. The Obama Administration went ahead with payments, on the theory that CSR was part-and-parcel of the well integrated ACA--and payments were therefore allowed, even if not specifically authorized.

But when the (then-Republican) House of Representatives sued, the district court ruled the payments unlawful. (The court wrote that "[t]he [ACA] unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers. Such an appropriation cannot be inferred. None of the Secretaries' extra-textual arguments--whether based on economics, "unintended" results, or legislative history--is persuasive.") The court stayed an injunction pending appeal. But the Trump Administration reversed course.

In doing so, the Trump Administration adopted the same legal analysis as the district court that struck the payments. (Again: this was a switch from the legal position in the Obama Administration.) In language that's telling and relevant to the wall question, the Trump DOJ wrote this:

There is no more fundamental power granted to the Legislative Branch than its exclusive power to appropriate funds. And the Executive Branch cannot unilaterally spend money that Congress has not appropriated. Congress's repeated choice to deny funding for CSR payments is thus Congress's prerogative. When Congress refuses to appropriate money for a program, the Executive is required to respect that decision.

So, no: By the Administration's own reckoning, and by district court precedent, absent specific congressional authorization to do so, President Trump cannot move money around to fund the wall.

February 12, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers, Spending Clause | Permalink | Comments (0)

Friday, January 25, 2019

Court Denies Restraining Order in Federal Employees' Lawsuit Over Shutdown

Judge Richard J. Leon (D.D.C.) earlier this week denied a temporary restraining order in favor of the federal employees who sued to get backpay and to not have to go to work during the shutdown. Judge Leon ordered further argument next Thursday, but the case is now likely moot (in light of today's agreement to get things going again, even if only temporarily).

The ruling means that the court declines to order the government to do anything for the employees, and leaves things to the political branches to work it out.

Judge Leon wrote in explicit separation-of-powers terms (and animated text--all emphasis in original):

But I want and need to make something very clear: the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches. We are an independent, co-equal branch of government, and whether or not we can afford to keep our lights on, our oath is to the Constitution and the faithful application of the law. In the final analysis, the shutdown is a political problem. It does NOT, and can NOT, change this Court's limited role. Of that I am very certain.

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But a TRO is designed to freeze the state of affairs, not throw the status quo into disarray. The TROs sought here would do the latter. Moreover, the emergency relief standard is a sliding scale, and one of the factors I have to weigh is whether granting relief sought is in the public interest. [One group of plaintiffs] would effectively have me order the Federal Aviation Administration to pay [their] unpaid salaries with money that the FAA does not have right now. As plaintiffs well know, Congress has the power of the purse, not me. I cannot grant injunctive relief in that form.

[Another group of plaintiffs] would have me, in effect, give all currently excepted federal employees--numbering in the hundreds of thousands across dozens of agencies--the option not to show up for work tomorrow. These are employees who perform functions that the relevant agencies have determined bear on the safety of human life and/or the protection of property. If I were to issue a TRO, there is no way to know how many of these excepted employees would choose not to report to work tomorrow, and there is no way to know what public services would therefore go unprovided.

It would be profoundly irresponsible under these circumstances--with no record whatsoever telling me what government functions would be impacted--for me to grant that TRO. At best, it would create chaos and confusion--at worst, catastrophe!

January 25, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Wednesday, January 16, 2019

The Federal Employees' Lawsuits Over the Shutdown

Over the last week, three separate lawsuits have been filed against President Trump and administration officials arguing that the government violates due process, the Thirteenth Amendment, the Fair Labor Standards Act, and the Anti-Deficiency Act in ordering certain federal workers to work without pay. In short, the plaintiffs collectively argue that compelled work amounts to a taking of property without due process; that compelled work without pay amounts to involuntary servitude; that the government violates the FLSA by failing to provide on-time payments of overtime wages; and that the government violates the Anti-Deficiency Act by ordering federal employees to work, even if their services aren't needed "in connection with an imminent threat to human life or property" (as required by the Act). (The plaintiffs argue that the government's interpretation of the Anti-Deficiency Act, based on OLC memos, is at odds with the 1990 amendments to the Act. They also argue that this interpretation, and the Act itself, unconstitutionally encroach on Congress's appropriations authority.)

The National Treasury Employees Union complaint is here; the Air Traffic Controllers Association complaint is here; and the anonymous federal employees' complaint is here.

The plaintiffs (again, collectively) seek declaratory relief, back pay and overtime pay, and an injunction prohibiting the government from ordering them to work without pay, among other things.

January 16, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Monday, January 14, 2019

Daily Read: Resolution to Censure Rep. Steve King for Racist Remarks

Congressman Bobby Rush of Illinois District 1 has introduced a Resolution in the House of Representatives to censure Congressman Steve King of Iowa, listing specific incidents beginning in 2006 and ending with the January 10 remark by Steve King to the New York Times: "White nationalist, White supremacist, Western civilization—how did that language become offensive?’’ Interestingly, the NYT article was profiling King as a precursor of the president's current demand for a "wall" on the southern border of the nation.  In a subsequent television interview Steve King stated he rejected white supremacy.

In November, a coalition of civil rights groups wrote a letter to the then-Speaker of the House and the then-House Majority Leader seeking censure of Representative King, detailing some of the same incidents in the Rush Resolution (and providing citations) as well as including others.

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January 14, 2019 in Congressional Authority, Current Affairs, News, Race | Permalink | Comments (1)

Wednesday, January 2, 2019

Daily Read: Can the Senate's Composition Change by Statute?

In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule. 

Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

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Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although 

the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”

Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white." 

Indeed, Orts states that  his proposal

corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.

Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.

Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.

[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]

January 2, 2019 in Congressional Authority, Courts and Judging, Equal Protection, Federalism, Race, Reconstruction Era Amendments, Scholarship, Seventeenth Amendment | Permalink | Comments (0)

Friday, December 28, 2018

Daily Read: SCOTUS Justices, Kavanaugh, and Ethics

In an editorial today, senior editorial writer of the Los Angeles Times Michael McGough argues that "Kavanaugh (and other justices) shouldn't be exempt from an ethics code." McGough's piece is prompted by the December 18 Order (from the Tenth Circuit as referred by Chief Justice Roberts) dismissing the 83 complaints against Kavanaugh which arose from his confirmation hearing and from his previous judicial conduct because Kavanaugh was now a Supreme Court Justice and "Congress has not extended the Judicial Conduct and Disability Act to Supreme Court Justices." As McGough notes, however, Chief Justice Roberts has implied "in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution."  This refers the 2011 year end report by Chief Justice Roberts in which he stated:

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

The Chief Justice soon thereafter explicitly rejected a call from some members of Congress to consider making the Code applicable to the Justices.  As we noted at the time, these concerns arose from Justice Alito attending political events and swirling around Justice Thomas regarding nondisclosure of his wife's finances, his wife's political activities, and his own financial actions

Given the renewed concerns regarding the impartiality of the Court as evinced by McGough's editorial among many other pieces, it might be time for Chief Justice Roberts to reconsider his position.  And it will be interesting to see if Roberts addresses ethics in his 2018 year end report.

 

December 28, 2018 in Congressional Authority, Current Affairs, History, Supreme Court (US) | Permalink | Comments (1)

Friday, December 14, 2018

Court Strikes the Entire Affordable Care Act

Judge Reed O'Connor (N.D. Tex.) today issued a sweeping and breathtaking ruling striking the entire Affordable Care Act. Judge O'Connor ruled that the individual mandate could no longer be supported by Congress's taxing power; that the individual mandate is not severable from the rest of the ACA; and that therefore the entire ACA must fail.

The case, Texas v. United States, arose after Congress passed the 2017 Tax Cuts and Jobs Act, which set the tax-penalty for noncompliance with the ACA's individual mandate at $0. Texas, a handful of other states, and a couple individuals sued, arguing that the individual mandate could no longer be supported by Congress's taxing power (as the Court held in NFIB), and, because it also couldn't be supported by Congress's Commerce Clause power (also as the Court held in NFIB), it was unconstitutional. Moreover, they argued that it was non-severable from the non-discrimination and community rating provisions of the ACA, and so therefore those provisions needed to fall, too.

The court agreed. Judge O'Connor ruled that the tax-penalty of the individual mandate could no longer be supported by Congress's taxing authority (in light of the $0 penalty in the 2017 tax act, which means that the penalty no longer raises money for the government, the touchstone for the taxing power). And because the mandate couldn't stand alone, without a tax penalty, because it can't be supported by the Commerce Clause, it is unconstitutional. But Judge O'Connor went a step farther and ruled that the individual mandate was non-severable from the entire ACA. The court looked to the statutory language (including congressional findings, which stated that the individual mandate was an essential part of the integrated ACA in order to ensure broad health insurance coverage and low costs), and the Court's ruling in NFIB to concluded that the entire Act was non-severable. As a result, the court struck the entire Act.

The ruling came as a declaratory judgment and summary judgment in favor of the plaintiffs, despite the fact that the plaintiffs originally sought only declaratory relief and a preliminary injunction. 

Unless stayed pending appeal (not in this ruling), the ruling gives cover to the government to start to dismantle the entire ACA (or at least those provisions that it hasn't already started to dismantle). 

December 14, 2018 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Opinion Analysis, Taxing Clause | Permalink | Comments (0)

Tuesday, December 11, 2018

District Court Dismisses FACA Challenge to Trump's Infrastructure Council

Judge Ellen Segal Huvelle (D.D.C.) dismissed a suit challenging President Trump's Infrastructure Council under the Federal Advisory Committee Act.

The ruling in Food & Water Watch v. Trump arose out of the plaintiff's FACA challenge to the Council, which was (or would have been) designed to give the President advice on infrastructure policy. The plaintiff claimed that the Council was stacked with President Trump's friends, and thus violated FACA's membership and transparency requirements.

The problem: the Council never got off the ground. For that reason, the court said it wasn't a "committee" or even a "de facto committee" under FACA, and the court therefore lacked jurisdiction.

Judge Huvelle emphasized how narrowly courts interpret FACA in order to avoid a separation-of-powers problem. Citing In re Cheney, she wrote

Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.

The court also denied the plaintiff's request for further discovery.

December 11, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)