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)

Tuesday, April 9, 2019

Trump's Appointment of Acting DHS Secretary Violates DHS Succession Act UPDATE

President Trump announced on Sunday his appointment of Customs and Border Patrol Director Kevin McAleenan as acting DHS Secretary after Secretary Kirstjen Nielsen resigned.

There's just one problem: The move violates the clear language of the DHS succession act.

House Homeland Security Committee Chair Bennie G. Thompson alerted the president to the problem in this letter yesterday. Quoting the provision, Thompson wrote:

Notwithstanding chapter 33 of title 5, United States Code, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.

The Under Secretary for Management is Claire M. Grady. She served in that position since August 2017. 

Thompson's letter "strongly urges" President Trump to follow the law, and "to nominate a suitable candidate for Secretary as expeditiously as possible."

This isn't President Trump's first legal wrangle with Congress over his appointment authority for positions within the executive branch. We posted most recently on problems with Matthew Whitaker's appointment as acting AG here; we posted on Mick Mulvaney's appointment as CFPB head here.

UPDATE: Claire Grady resigned late Tuesday, clearing the way for Trump's appointment.

April 9, 2019 in Appointment and Removal Powers, Executive Authority, News, Separation of Powers | 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)

Thursday, March 28, 2019

Court Strikes Fed's Approval of States' Medicaid Work Requirements (again, and again)

Judge James E. Boasberg (D.D.C.) ruled in two separate cases that the Department of Health and Human Services's approval of work requirements for Medicaid by Arkansas and Kentucky violated the Administrative Procedure Act. The rulings send the cases back to HHS for further consideration of the requirements.

The rulings are a victory for opponents of Medicaid work requirements--at least for now. It is possible that the states and HHS on remand could come up with better reasons for imposing the requirements (reasons more consistent with the purposes of the Medicaid program, that is), or that Congress could change the Medicaid program to authorize work requirements. But barring some more Medicaid-consistent reason for the requirements (or a congressional change, which seems unlikely, at best), it doesn't look like this court will approve any HHS authorization for these states' work requirements.

Just to be clear: the ruling does not halt all work requirements, though. It just says that HHS has to reconsider its approval of work requirements for these two states. The Trump Administration has approved eight states for work requirements, and seven other states are in the pipeline.

One ruling says that HHS's approval of Arkansas's work-requirement "demonstration project" violated the APA, because HHS failed to consider that the requirement would lead a substantial number of Arkansas residents to be disenrolled from Medicaid. That's a problem, because the core purpose of Medicaid is to "furnish medical assistance" to those who cannot afford it. If the work requirement cuts recipients off, then, said the court, it fails to advance the core purpose of the Medicaid program. And because HHS didn't consider that in approving the project, HHS's approval was arbitrary and capricious in violation of the APA.

The court's reasoning in the Arkansas case follows its same reasoning in the Kentucky case from last summer. The court sent the Kentucky case back to HHS for further consideration, and the second recent ruling deals with HHS's approval of Kentucky's work requirement after reconsideration.

In that second case, round 2 of the Kentucky challenge, HHS advanced a new argument on remand: If Kentucky's work requirement isn't approved, then Kentucky would have to un-expand its Medicaid expansion (under the Affordable Care Act) in order to ensure that its Medicaid program remained viable. The un-expansion would result in even more recipients being thrown off Medicaid than the work requirement. In other words, Kentucky threatened to un-expand Medicaid (and cut even more people off) if HHS didn't approve the work requirement.

The court had none of it: "The Court cannot concur that the Medicaid Act leaves the Secretary so unconstrained, nor that the states are so armed to refashion the program Congress designed in any way they choose." The court sent Kentucky's request back to HHS for reconsideration, again.

Next step in both cases: HHS reconsideration, yet again. In the meantime, the states can't impose their proposed work requirements.

March 28, 2019 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, March 21, 2019

President Issues Executive Order on University "Free Inquiry" and Student Loans

In an Executive Order today, President Trump sought to promote free inquiry and regulate student loans in higher education.

The text of the E.O. is not yet available from government sources, but as reported by the Washington Post, the E.O. provides:

 

IMPROVING FREE INQUIRY, TRANSPARENCY, AND ACCOUNTABILITY AT COLLEGES AND UNIVERSITIES

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Purpose. The purpose of this order is to enhance the quality of postsecondary education by making it more affordable, more transparent, and more accountable. Institutions of higher education (institutions) should be accountable both for student outcomes and for student life on campus.

In particular, my Administration seeks to promote free and open debate on college and university campuses. Free inquiry is an essential feature of our Nation's democracy, and it promotes learning, scientific discovery, and economic prosperity. We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning.

The financial burden of higher education on students and their families is also a national problem that needs immediate attention. Over the past 30 years, college tuition and fees have grown at more than twice the rate of the Consumer Price Index. Rising student loan debt, coupled with low repayment rates, threatens the financial health of both individuals and families as well as of Federal student loan programs. In addition, too many programs of study fail to prepare students for success in today's job market.

The Federal Government can take meaningful steps to address these problems. Selecting an institution and course of study are important decisions for prospective students and significantly affect long-term earnings. Institutions should be transparent about the average earnings and loan repayment rates of former students who received Federal student aid. Additionally, the Federal Government should make this information readily accessible to the public and to prospective students and their families, in particular.

This order will promote greater access to critical information regarding the prices and outcomes of postsecondary education, thereby furthering the goals of the National Council for the American Worker established by Executive Order 13845 of July 19, 2018 (Establishing the President's National Council for the American Worker). Increased information disclosure will help ensure that individuals make educational choices suited to their needs, interests, and circumstances. Access to this information will also increase institutional accountability and encourage institutions to take into account likely future earnings when establishing the cost of their educational programs.

Sec. 2. Policy. It is the policy of the Federal Government to:

(a) encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions;

(b) help students (including workers seeking additional training) and their families understand, through better data and career counseling, that not all institutions, degrees, or fields of study provide similar returns on their investment, and consider that their educational decisions should account for the opportunity cost of enrolling in a program;

(c) align the incentives of institutions with those of students and taxpayers to ensure that institutions share the financial risk associated with Federal student loan programs;

(d) help borrowers avoid defaulting on their Federal student loans by educating them about risks, repayment obligations, and repayment options; and

(e) supplement efforts by States and institutions by disseminating information to assist students in completing their degrees faster and at lower cost.

Sec. 3. Improving Free Inquiry on Campus. (a) To advance the policy described in subsection 2(a) of this Order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

(b) "Covered agencies" for purposes of this section are the Departments of Defense, the Interior, Agriculture, Commerce, Labor, Health and Human Services, Transportation, Energy, and Education; the Environmental Protection Agency; the National Science Foundation; and the National Aeronautics and Space Administration.

(c) "Federal research or education grants" for purposes of this section include all funding provided by a covered agency directly to an institution but do not include funding associated with Federal student aid programs that cover tuition, fees, or stipends.

Sec. 4. Improving Transparency and Accountability on Campus. (a) To advance the policy described in subsections 2(b)-(e) of this order, the Secretary of Education (Secretary) shall, to the extent consistent with applicable law:

(i) make available, by January 1, 2020, through the Office of Federal Student Aid, a secure and confidential website and mobile application that informs Federal student loan borrowers of how much they owe, how much their monthly payment will be when they enter repayment, available repayment options, how long each repayment option will take, and how to enroll in the repayment option that best serves their needs;

(ii) expand and update annually the College Scorecard, or any successor, with the following program-level data for each certificate, degree, graduate, and professional program, for former students who received Federal student aid:

(A) estimated median earnings;

(B) median Stafford loan debt;

(C) median Graduate PLUS loan debt (if applicable);

(D) median Parent PLUS loan debt; and

(E) student loan default rate and repayment rate; and

(iii) expand and update annually the College Scorecard, or any successor, with the following institution-level data, providing the aggregate for all certificate, degree, graduate, and professional programs, for former students who received Federal student aid:

(A) student loan default rate and repayment rate;

(B) Graduate PLUS default rate and repayment rate; and

(C) Parent PLUS default rate and repayment rate.

(b) For the purpose of implementing subsection (a)(ii) of this section, the Secretary of the Treasury shall, upon the request of the Secretary, provide in a timely manner appropriate statistical studies and compilations regarding program-level earnings, consistent with section 6108(b) of title 26, United States Code, other applicable laws, and available data regarding programs attended by former students who received Federal student aid.

Sec. 5. Reporting Requirements. (a) By January 1, 2020, the Secretary, in consultation with the Secretary of the Treasury, the Director of the Office of Management and Budget, and the Chairman of the Council of Economic Advisers, shall submit to the President, through the Assistant to the President for Domestic Policy and the Assistant to the President for Economic Policy, a report identifying and analyzing policy options for sharing the risk associated with Federal student loan debt among the Federal Government, institutions, and other entities.

(b) By January 1, 2020, the Secretary, in consultation with the Secretary of the Treasury, shall submit to the President, through the Assistant to the President for Domestic Policy and the Assistant to the President for Economic Policy, policy recommendations for reforming the collections process for Federal student loans in default.

(c) Beginning July 1, 2019, the Secretary shall provide an annual update on the Secretary's progress in implementing the policies set forth in subsections 2(b)-(e) of this order to the National Council for the American Worker at meetings of the Council.

(d) Within 1 year of the date of this order, the Secretary shall compile information about successful State and institutional efforts to promote students' timely and affordable completion of a postsecondary program of study. Based on that information, the Secretary shall publish a compilation of research results that addresses:

(i) how some States and institutions have better facilitated successful transfer of credits and degree completion by transfer students;

(ii) how States and institutions can increase access to dual enrollment programs; and

(iii) other strategies for increasing student success, especially among students at high risk of not completing a postsecondary program of study.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

While there is no definition of "free inquiry," the E.O. delegates authority to administrative agencies to develop regulations.

March 21, 2019 in Executive Authority, First Amendment | Permalink | Comments (0)

Monday, March 18, 2019

AG Barr Invokes States Secrets Privileges in Twitter Suit

Attorney General Barr invoked the state secrets privilege to protect material in Twitter's suit against the Justice Department for forbidding it from publishing information on National Security Letters and  surveillance orders that it received from the government. 

The case, Twitter v. Barr, arose when Twitter sought to publish a Transparency Report describing the amount of national security legal process that the firm received in the second half of 2013. Twitter sought to publish this information because it said that the government wasn't completely forthcoming in its public comments about the extent of national security legal process served on it. DOJ declined Twitter's request to publish the information, citing national security concerns, and Twitter sued under the First Amendment. Here's Twitter's Second Amended Complaint.

DOJ now asserts the state secrets privilege in order to protect certain information in the pending case. But there are two things that make the assertion a little unusual. First, DOJ asserts the privilege not against the Transparency Report itself or the information contained in it, but instead against a confidential submission (the "Steinbach Declaration") that explains why Twitter's request to publish this information could harm national security. In other words, DOJ says that the explanation why the underlying information could harm national security itself could harm national security. 

Next, Twitter's attorney now has a security clearance to view the material, yet DOJ argues that the privilege should still protect the material--even from Twitter's security-cleared attorney. (DOJ's position has been that the court could review material in camera and ex parte and make a determination as to whether it could come in.) In fact, much of the government's submission is dedicated to arguing why privileged material can't be released to a security-cleared plaintiff's attorney. (In short: It would increase the risk of disclosure.)

The government argues that the privileged material is such an important part of Twitter's suit that, without it, the court must dismiss the case.

DOJ cites four categories of privilege-protected classified national security information that appear in the Steinbach Declaration: (1) information regarding national security legal process that has been served on Twitter; (2) information regarding how adversaries may seek to exploit information reflecting the government's use of national security legal process; (3) information regarding the government's investigative and intelligence collection capabilities; and (4) information concerning the FBI's investigation of adversaries and awareness of their activities.

The government's submission is supported by declarations of AG Barr and Acting Executive Assistant Director of the National Security Branch of the FBI Michael McGarrity. The government separately submitted a confidential version of McGarrity's declaration.

Importantly, AG Barr's declaration draws on the Attorney General's Policies and Procedures Governing Invocation of the State Secrets Privilege, adopted in the Obama Administration as a response to the widely regarded overly aggressive assertions of the privilege during the Bush Administration. AG Barr's references to this document suggest that the current DOJ will respect the principles stated in it. 

March 18, 2019 in Cases and Case Materials, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0)

Thursday, March 14, 2019

New York Appellate Court Upholds Jurisdiction Over President in Zervos's Defamation Lawsuit

In its opinion in Zervos v. Trump, the Appellate Division, First Department of the New York State courts held that the lawsuit for defamation could proceed against the President while he is in office.

Recall that in March 2018, the New York state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of  the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court.  Recall also that soon thereafter, the appellate division in New York denied President Trump's motion for a stay, in a summary decision, and likewise soon thereafter, the New York Court of Appeals (NY's highest court) dismissed the appeal by Trump on the ground that the order appealed from does not finally determine the action.

In today's divided decision, the appellate division reached the merits of the trial judge's opinion with the majority affirming the decision regarding the President's amenability to suit, and all five judges agreeing that there was a claim for defamation.

Writing for the majority of three judges, Judge Dianne Renwick concluded that the Supremacy Clause, Article VI, does not bar a state court from exercising jurisdiction. She rejected Trump's argument that because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to always be in function" as being without support in the constitutional text or case law and conflicting with the fundamental principle that the United States is a "government of laws and not of men." After a detailed discussion of Clinton v. Jones, she stated that in short, the decision "clearly and unequivocably demonstrates that the Presidency and the President are indeed separable." She continued that "aside from the forum, plaintiff's case is materially indistinguishable from Clinton v. Jones," and noted that Congress had not acted to afford the President more protection, interestingly citing and quoting an article by the most recent Supreme Court Justice, Brett Kavanaugh.

The difference between the majority and the dissent is centered on footnote 13 of Clinton v. Jones:

Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178—179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials ... to take action in derogation of their ... federal responsibilities")."

But as the majority opinion explains,

the cases cited in the footnote above suggest only that the Supreme Court was concerned with a state's exercise of control over the President in a way that would interfere with his execution of federal law (Hancock, 426 US at 167 [holding that the State of Kentucky could not force federal facilities in the State to obtain state permits to operate]; Mayo, 319 US at 441 [holding that a Florida state official could not order the cessation of a federal fertilizer distribution program]; but see Alabama v King & Boozer, 314 US 1 [1941] [holding that the State of Alabama could charge a tax on lumber that a federal government contractor purchased within the state for construction of an army base, where the federal government would ultimately pay the tax]).

The_Sword_of_Damocles _1812The difference between the majority and dissent centers on the possibility that a state court could hold the President in contempt.  For the majority, this is a "hypothetical concern" that is not presently before the court, noting also that contempt is unusual in all circumstances and state courts would be aware of the issue. For the dissent, on the other hand, although there is no reason to believe the President Defendant "would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy;" the contempt power would be a "sword of Damocles hanging over the President's head."

All judges agreed that Zervos stated a claim for defamation, rejecting Trump's claim that the statements were mere hyperbole and not pertaining to the plaintiff. Instead, he was clearly including Zervos in statements and his "flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying" is not rhetorical or a statement of opinion.

Presumably, the case will be heard on appeal by New York's highest court.

[image: Richard Westall, Sword of Damocles, 1812 via]

 

March 14, 2019 in Courts and Judging, Executive Authority, Executive Privilege, Federalism, First Amendment, Opinion Analysis, Speech | 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, March 6, 2019

Federal District Judge Finds Proposed Citizenship Question on Census Unconstitutional

In his 126 page opinion in 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.

Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.  

Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq.  An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.

In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.

The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including

the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.

As to the Enumeration Clause, Judge Seeborg wrote:

The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.

Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question

will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.

[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:

The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.

Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.

1920_census_Moisant

[image: Los Angeles Census materials, 1920, via]

March 6, 2019 in Courts and Judging, Current Affairs, Elections and Voting, Executive Authority, Opinion Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Tuesday, February 26, 2019

D.C. Circuit Rebuffs Challenge to Mueller's Appointment

The D.C. Circuit ruled in In re: Grand Jury Investigation that DAG Rosenstein's appointment of Robert Mueller as Special Counsel did not violate the Appointments Clause. The ruling reaffirms Mueller's authority as Special Counsel and means that investigation target Andrew Miller will have to comply with grand jury subpoenas issued by Mueller.

We posted previously on the case here. We posted on Paul Manafort's similar case here, and another one here. We posted on yet another similar case here. We posted on Mueller's appointment regs and letter here.

The court held that the Special Counsel is an "inferior officer" (and not a "principal officer") under the Appointments Clause, and therefore need not be nominated by the President with the advice and consent of the Senate. (If the Special Counsel were a principal officer, as Miller argued, the Appointments Clause would have required nomination by the President with advice and consent of the Senate. Because Mueller wasn't appointed this way, his appointment would have violated the Clause.) The court noted that the AG exerts near total control over the Special Counsel, notwithstanding the independence built into the Special Counsel regulatory scheme (the good-cause firing requirement), because ultimately the AG could simply revoke the Special Counsel regs and eliminate the office. (The court also noted that Deputy AG Rosenstein could have amended Mueller's appointment letter to do away with the regulatory independence that the office enjoys.) (The fact that the Special Counsel is a creation of DOJ regulations distinguishes this case on this point from Morrison v. Olsen, where the Independent Counsel was a creature of the Ethics in Government Act.)

The court held moreover that Supreme Court and circuit precedent and the AG's broad statutory power to appoint attorneys in the DOJ all say that the AG (or acting AG, here the DAG) had clear authority to appoint a Special Counsel--even one from outside the ranks of the Department. The court pointed to its own ruling in Sealed Case, involving the Office of Independent Counsel for Iran/Contra: "[T]his court assumed that the independent counsel did not already hold a position inside the Department when it held that the Attorney General's appointment of him to the Office of Independent Counsel: Iran/Contra was valid. That analysis applies equally to the facts of the instant case."

Finally, the court ruled that DAG Rosenstein sat in the seat of the AG for the purpose of Mueller's appointment--and therefore Mueller, as an inferior officer, was properly appointed by the head of an agency under the Appointments Clause. The court said that AG Sessions's recusal meant that he was "disabled" under the DOJ line-of-succession act for the purpose of appointing a Special Counsel, and that DAG Rosenstein validly stood in his shoes for that limited purpose.

February 26, 2019 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, February 25, 2019

District Court Denies Preliminary Injunction Against Agency Bump Stock Ban

Judge Dabney L. Friedrich (D.D.C.) denied the plaintiffs' motion for a preliminary injunction in their challenge to ATF's new rule banning bump-stocks. The ruling in Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives means that the ban can go into effect as the case moves forward; it also telegraphs that the plaintiffs don't have a strong legal case, or really any legal case, against the rule.

We posted on the complaint here, with some background. (The ATF rule defines a standard bump stock as a "machinegun" under the National Firearms Act. Under the rule, effective March 26, 2019, current possessors of bump stocks must either destroy them or abandon them at an ATF office.) 

Judge Friedrich ruled that the plaintiffs were unlikely to succeed on the merits of their claims. In particular, the court held that the NFA contained ambiguous terms (key parts of the definition of "machinegun," "single function of the trigger" and "automatically," are not separately defined), and under Chevron the ATF could define "machinegun" for itself. Moreover, the court said that the ATF didn't violate any procedure under the Administrative Procedure Act in adopting the reg. The court held that the plaintiffs' Takings Clause challenge should await future government compensation, instead of a preliminary injunction. And the court rejected the plaintiffs' statutory and constitutional challenges to Acting AG Whitaker's appointment:

The plain text and structure of [the AG Act and the Federal Vacancies Reform Act], however, demonstrate that they were intended to coexist: the AG Act provides a line of succession, and the FVRA gives the President discretion to depart from that line, subject to certain limitations met here.

As a constitutional matter, the plaintiffs argue that the Appointments Clause generally requires an acting principal officer to be either the principal officer's first assistant or appointed by the President with the advice and consent of the Senate. But that theory is foreclosed by Supreme Court precedent and historical practice, both of which have long approved temporary service by non-Senate confirmed officials, irrespective of their status as first assistants.

Separately, the plaintiffs argue that the Appointments Clause at a minimum requires the role of an acting principal officer to be filled by an inferior officer and not a mere employee. . . . Whitaker's designation under the FVRA was a Presidential appointment. And if the temporary nature of Whitaker's service prevented him from becoming an officer, then the President was not constitutionally obligated to appoint him at all. 

February 25, 2019 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers, Takings Clause | Permalink | Comments (0)

Daily Read: Johnson v. Trump

In a complaint filed in United States District Court for the Middle District of Florida against Donald Trump and the Donald Trump Campaign, former campaign staffer Alva Jones seeks relief on three counts: battery as against Trump in his individual capacity for a forcible kiss; unequal pay based on gender under the Unequal Pay Act against the Campaign organization; and unequal pay based on race under 42 USC §1981 against the Campaign organization.

Card
The 39 page complaint in Jones v. Trump is filled with factual allegations, embedded tweets and photographs, and numerous footnotes.  The allegations substantiating the battery claim include recitations regarding previous allegations and statements regarding similar actions. 

Like the ongoing suit in New York state courts, Zervos v. Trump, for defamation linked to sexual harassment, one issue that defendant Trump could raise would be presidential immunity.  But the argument for any immunity is exceedingly weak given the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones  holding that then-President Clinton was subject to suit in federal court. And any immunity does not extend to the campaign organization.

And as Ronan Farrow writes in the New Yorker:

The most legally significant aspect of Johnson’s suit may ultimately be something the complaint does not explicitly address: the pervasive use of nondisclosure agreements by Trump during his campaign and in his Administration. Johnson’s suit is at least the sixth legal case in which Trump campaign or Administration employees have defied their nondisclosure agreements. 

This will definitely be a case to watch, even if the constitutional issues are not the primary ones it certainly has constitutional dimensions.

February 25, 2019 in Current Affairs, Executive Authority, Executive Privilege, Gender, Race | 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)