Tuesday, February 19, 2019
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.
Monday, February 18, 2019
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.
Saturday, February 16, 2019
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.
Tuesday, February 12, 2019
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.
Judge Randolph D. Moss (D.D.C.) ruled last week that Public Citizen doesn't not have standing to challenge President Trump's executive order requiring agencies to revoke two regs for every one they adopt.
The unusual ruling in this unusual case comes because of the unusual procedural posture: the government moved to dismiss for lack of standing, even as Public Citizen moved for partial summary judgment on standing.
The ruling simply means that the case can move forward--first, on standing. The next step: the court will schedule a conference to determine how best to finally decide the standing question. At issue: Whether President Trump's EO is actually causing agencies not to adopt regulations (that then harm Public Citizens or its members).
After the court initially dismissed the case for lack of standing, Public Citizen amended its complaint to allege "purchaser standing" under circuit law. Under that doctrine, a plaintiff can allege standing based on an agency's failure to regulate, if the consumer wanted to purchase a product that would have been subject to that regulation. As the court explained, with regard to the vehicle-to-vehicle regulation--one of the five that Public Citizen challenged:
Plaintiffs now [state] that "[t]he delay of the V2V rule is depriving" two of their members "of the opportunity to purchase vehicles with this desired feature." Although that addition might seem minor, it signals a significant change in Plaintiffs' theory of standing: rather than rely on an increased-risk-of-harm theory of standing, as they previously did, they now contend that two members of Public Citizen, Amanda Fleming and Terri Weissman, would have "purchaser standing" were they to sue in their right and that their interests are sufficient to sustain Public Citizen's associational standing to sue. . . .
Fleming attests that she plans to purchase a new car "in the next 5 years or so," and Weissman attests that she plans to buy a new car "in the next 5-7 years." Both attest that they would like their new cars to include V2V technology. They assert that the delay in finalizing the rule "will negatively affect [their] ability to purchase a new car with this safety system" and that they will "be limited in [their] ability to purchase the vehicle[s] [they] desire."
Under circuit precedent, "the inability of consumers to buy a desired product may constitute an injury-in-fact 'even if they could ameliorate the injury by purchasing some alternative product.'" "That holds true here and provides a sufficient basis to reject the government's argument that Fleming and Weissman face no threat of injury because they can, in any event, buy a V2V-equipped Cadillac CTS sedan, Lexus, or Toyota."
But still there's the question of causality (and the related question of redressability). In particular: Did President Trump's EO cause the failure to regulate, and would a court order redress the plaintiffs' injuries? The court said that Public Citizen plausibly pleaded causation (and thus denied the government's motion to dismiss), but that it didn't show causation beyond genuine dispute (and thus denied Public Citizen's motion for summary judgment).
That ruling leaves the case alive--but only (at first) to decide whether the EO caused the plaintiffs' injuries.
Friday, January 25, 2019
Judge Emmet G. Sullivan (D.D.C.) today denied the government's request to stay the court's earlier order vacating the government's restrictions on asylum pending appeal. The ruling means that the court's order will remain in place--and the government can't enforce its crabbed "credible fear" standard in expedited removal proceedings--while the government appeals the earlier ruling.
Recall that the court halted DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings, because those standards violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious under the Administrative Procedure Act. (AG Sessions initiated the change in a ruling in Matter of A-B-, and DHS followed up with administrative guidance.) Those standards restricted claims by individuals who claim asylum based on a fear of domestic violence and gang violence.
The government claimed that the court only had authority to rule on the government's standards with regard to the plaintiffs in this case, and not across the board.
But the court rejected that argument, pointing to the language of the INA and the legislative history. The court also wrote that the government won't be irreparably harmed, and that third parties (other immigrants subject to the government's standard) would be harmed with a stay.
The ruling underscores the court's original order on the merits.
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.
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!
Wednesday, January 16, 2019
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 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.
Tuesday, January 15, 2019
In its 277 page Opinion in New York v. United States Department of Commerce, United States District Judge Jesse Furman concludes by vacating and enjoining the implementation of the decision of Department of Commerce Secretary Wilbur Ross (pictured below) adding a citizenship question to the 2020 census questionnaire.
Recall that this challenge is one of several to the proposal to add a citizenship question to the 2020 census. Recall also that in July, Judge Furman denied in part motions to dismiss and allowed the case to proceed. Judge Furman also allowed discovery in the form of a deposition of Wilbur Ross, an order which was stayed and is now before the United States Supreme Court: oral argument in Department of Commerce v. USDC Southern District of New York is scheduled for February 19, 2019, with the question presented as under the Administrative Procedure Act.
Here New York joins seventeen other state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors, and the case is consolidated with New York Immigration Coalition v. United States Department of Commerce, with NGO plaintiffs. The claims involve the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, as well as the Administration Procedure Act, with the NGO plaintiffs also raising a Due Process/Equal Protection claim which Judge Furman considered. The case was heard by Judge Furman in an eight day bench trial, despite, as Judge Furman's opinion phrases it the Defendants who have "tried mightily to avoid a ruling on the merits of these claims."
Judge Furman's lengthy opinion helpfully contains a table of contents which serves as an outline for the complicated facts and process involved in the case.
A large portion of Judge Furman's opinion is devoted to the constitutional question of standing. This Article III issue — requiring an injury in fact, fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision — is in essence a question of the Enumeration Clause problem. In other words, to prove injury in fact, the Plaintiffs must prove that the addition of the citizenship question would impact enumeration in a particular way, or "cause a differential decline" in self-response rates which would not be cured, and which would effect apportionment and other matters. For Judge Furman, these and other claims, including a diversion of resources, harm to the quality of data used in intrastate policies, were sufficient to confer standing to the states. Additionally, Judge Furman addressed and found for the most part associational standing for the NGO plaintiffs.
On the merits, Judge Furman rested his decision on the APA claims, including that the decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.
The evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual.
Judge Furman found that the "presumption of regularity" was rebutted here.
However, Judge Furman found that the equal protection claim (as part of Due Process Clause of the Fifth Amendment) as pressed by the NGO plaintiffs could not be sustained. Essentially, Judge Furman found that there was not sufficient proof that the pretextual decision was a pretext for discriminatory intent necessary under equal protection, as had been alleged and survived the motion to dismiss, but which now — without the deposition of Wilbur Ross — was not possible to prove, at least not yet.
Judge Furman justified the remedy of injunction thusly:
Measured against these standards, Secretary Ross’s decision to add a citizenship question to the 2020 census — even if it did not violate the Constitution itself — was unlawful for a multitude of independent reasons and must be set aside. To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a “government of laws, and not of men.” John Adams, Novanglus Papers, No. 7 (1775). And it would do so with respect to what Congress itself has described as “one of the most critical constitutional functions our Federal Government performs.” 1998 Appropriations Act,
§ 209(a)(5), 111 Stat. at 2480-81.
The government is sure to appeal.
Judge Wendy Bettlestone (E.D. Pa.) yesterday issued a preliminary injunction halting the government's final rules that provide sweeping exemptions to the contraception mandate under the Affordable Care Act.
Judge Bettlestone's ruling is the second in two days halting the rules. But unlike Sunday's ruling, which applied just to the plaintiffs, Judge Bettlestone's injunction applies nationwide. The ruling strikes yet another significant blow against the administration's efforts to eviscerate the contraception mandate and means that the government can't enforce its new rules unless and until it successfully appeals or wins a stay. The second ruling also makes it more likely that the issue will sooner-or-later end up at the Supreme Court.
The court held that the religious and moral exemptions violated the Administrative Procedure Act, for both procedural and substantive reasons. As to procedure, the court held that the government's earlier failure to apply APA procedures to the interim rules "infected" its adoption of the final rules. As to substance, the court ruled that the final rules "exceed the Agencies' authority under the ACA" and cannot be justified by the Religious Freedom Restoration Act.
The court recognized the controversies around nationwide injunctions, but wrote that a nationwide injunction was justified here for three reasons:
For one, anything short of a nation-wide injunction would likely fail to provide the States "complete relief." . . .
Second, it is far from clear how burdensome a nation-wide injunction would be on Defendants, given that when "agency regulations are unlawful, the ordinary result is that the rules are vacated--not that their application to the individual petitioners is proscribed."
Third, one of the risks associated with a nation-wide injunction--namely, "foreclosing adjudication by a number of different courts"--is not necessarily present here, as the parallel litigation in the Ninth Circuit evidences.
Fundamentally, given the harms to the States should the Final Rules be enforced--numerous citizens losing contraceptive coverage, resulting in "significant, direct and proprietary harm: to the States in the form of increased use of state-funded contraceptive services, as well as increased costs associated with unintended pregnancies--a nation-wide injunction is required to ensure complete relief to the States.
Friday, December 21, 2018
The Sixth Circuit ruled that a group of Iraqis couldn't bring a habeas petition to challenge their removal to Iraq, and that the district court erred in granting class-wide relief over their detention claim. The ruling sends the case back for further proceedings, but it leaves no room for the lower court to halt their removal. This means that the petitioners will have to follow normal channels available to them to challenge their removal (if any), but that they may be able to obtain injunctions related to their detention one-by-one.
The case arose when a group of Iraqis brought a putative class action habeas petition on behalf of "all Iraqi nationals in the United States with final orders of removal, who have been, or will be, arrested and detained by ICE as a result of Iraq's recent decision to issue travel documents to facilitate U.S. removal." They then brought a second claim, to challenge their continued detention during the pendency of their cases.
The district court ruled that while Congress had vested jurisdiction in "executing removal orders" exclusively in the AG (and thus divested the courts of jurisdiction over those claims), the "extraordinary circumstances" here created an as-applied constitutional violation of the Suspension Clause. As to the detention claims, the district court granted a class-wide preliminary injunction requiring bond hearings.
The Sixth Circuit reversed on both counts. As to the Suspension Clause ruling, the Sixth Circuit called the district court's approach "a broad, novel, and incorrect application of the Suspension Clause" and held that "the type of relief Petitioners seek is not protected by the Suspension Clause":
As the government states, "[t]he claims and relief requested here are fundamentally different from a traditional habeas claim." Petitioners' removal-based claims did not challenge any detention and did not seek release from custody. Rather, they sought "a stay of removal until they . . . had a reasonable period of time to locate immigration counsel, file a motion to reopen in the appropriate administrative immigration forum, and have that motion adjudicated to completion in the administrative system, with time to file a petition for review and request a stay of removal in a federal court of appeals." "[T]he nature of the relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases" because "the last thing petitioners want is simple release" but instead a "court order requiring the United States to shelter them." Munaf. And the relief ordered by the district court--a stay of removal--did not result in Petitioners' release from custody. Because the common-law writ could not have granted Petitioners' requested relief, the Suspension Clause is not triggered here.
Moreover, the court said that Congress provided an adequate alternative to habeas to the petitioners: a motion to reopen followed by a petition for review filed in a court of appeals.
As to the detention claims, the court held that the statute grants courts the power to issue injunctive relief only as to "an individual alien against whom proceedings under such part have been initiated"--and not class-wide relief.
Thursday, December 20, 2018
Bill Barr, President Trump's nominee to be AG, earlier this year issued a sweeping criticism of Robert Mueller's investigation into obstruction of justice by the President that further reveals his views on executive authority. (We previously posted on Barr's views on the unitary executive here.) The memo, penned on June 8, 2018, was directed to Deputy AG Rosenstein and Assistance AG Steve Engel, and addresses Mueller's investigation into obstruction based on President Trump's statements to James Comey related to Michael Flynn (that he hoped Comey could eventually "let . . . go" of the Flynn investigation) and his firing of Comey.
The memo--including Barr's constitutional claims, and his prejudgment of Mueller's investigation--will undoubtedly become an issue during his confirmation hearings.
This may become an issue, too: Barr wrote a detailed, 19-page legal analysis on a difficult and hotly contested legal question, even as he acknowledged that he was "in the dark about many facts." (Indeed, Barr doesn't seem to have any particular insider knowledge of Mueller's investigation at all, yet he builds his analysis on remarkably detailed assumptions or guesses about Mueller's legal positions and arguments.) Congress might take note that other attorneys, when "in the dark about many facts," might pause and reflect a little before issuing a 19-page memo with detailed legal analysis--and that Barr's willingness to do so might reflect on his judgment and professionalism.
In short, Barr argues that Mueller is playing loose with the federal law that criminalizes obstruction, and that as a matter of constitutional law the President can't be convicted of obstruction for acting within his authority just because he had a bad motive. In other words, according to Barr the President has inherent Article II authority to do what he did (make the statements to Comey, and fire Comey), and those acts can't become illegal just because he did it with a bad motive.
Barr acknowledges that there are some acts a president might take that would constitute obstruction--for example, by "sabotaging a proceeding's truth-finding function" by "knowingly destroy[ing] or alter[ing] evidence, suborn[ing] perjury," etc.--stopping just short of a Nixonian conclusion that "when the president does it, that means that it is not illegal." But under his theory, there seems to be no way to prevent a president from interfering with or entirely halting an investigation or prosecution into any of these illegalities (aside from whether a sitting president can be prosecuted).
Here's the thumbnail version of the constitutional argument:
Second, Mueller's premise that, whenever an investigation touches on the President's own conduct, it is inherently "corrupt" . . . for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President's supervisory authority. Moreover, such a limitation cannot be reconciled with the Department's longstanding position that the "conflict of interest" laws do not, and cannot, apply to the President, since to apply them would impermissibly "disempower" the President from supervising a class of cases that the Constitution grants him the authority to supervise.
Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.
The details begin on page 9 of the memo. (Earlier portions of the memo argue that Mueller is misreading and misapplying the obstruction statute.)
Wednesday, December 19, 2018
Judge Jon Tigar (N.D. Cal.) today turned his temporary restraining order against the Administration's policy that makes anyone who crosses the southern border ineligible for asylum into a preliminary injunction. (Recall that the court issued a temporary restraining order late last month. It expired today.)
The ruling halts--or continues to halt--the Administration's ban on southern-border-crossing asylum claims. Still, the Administration's request to the Supreme Court to intervene in Judge Tigar's earlier temporary restraining order is still pending.
After hearing arguments, Judge Tigar wrote that "[t]he harms to those seeking asylum are also even clearer, and correspondingly the public interest more plainly supports injunctive relief."
This was the second ruling today against Administration asylum policies. We covered the earlier one, striking DOJ and USCIS rules largely banning victims of domestic violence and gang violence from asylum, here.
Judge Emmet Sullivan (D.D.C.) today ruled that several aspects of the DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious and therefore invalid under the Administrative Procedure Act.
Judge Sullivan vacated the credible fear policies; permanently enjoined the government from applying those policies and from removing plaintiffs who are currently in the United States without first providing a valid credible fear determination; and ordered the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with a new credible fear determination. (At the same time, the court identified portions of the standards that were not inconsistent with the INA.)
The ruling means that the government cannot implement its sweeping and unilateral restrictions on asylum claims at the credible fear stage based on domestic violence and gang violence. It follow by just a couple weeks another significant ruling against Administration asylum restrictions.
The ruling is a huge victory for asylum claimants, and a serious blow against the Trump Administration's efforts to restrict the bases for asylum at the credible fear stage by unilateral agency action.
The case tested then-AG Sessions's ruling in Matter of A-B- and a USCIS Policy Memo, both of which had the effect of denying asylum to victims of domestic violence and gang violence. The court ruled that most of the standards in these administrative documents violated the INA and the APA.
Friday, December 14, 2018
The Ninth Circuit upheld a lower court's preliminary injunction barring the government from enforcing its interim final rules allowing employers and organizations more freely to exempt themselves from the Affordable Care Act's contraception requirement. But at the same time, the court narrowed the nationwide injunction to just the plaintiff states.
The ruling is a significant victory for the plaintiffs. But it may be short-lived, as the government moves to implement final rules (the same as the interim rules, published in November) in January.
The case, California v. Azar, involves several states' (California, Delaware, Virginia, Maryland, and New York) challenge to the government's 2017 interim final rules substantially loosening the exemption standard for organizations and persons to get out from under the Affordable Care Act's contraception requirement. (Recall that the Supreme Court declined to rule on the government's prior exemption in Zubik v. Burwell.) The two IFRs categorically exempted certain religious employers and essentially made the requirement optional for anyone else who has a "sincerely held moral conviction" to contraception.
The plaintiffs argued that the IFRs violated the Administrative Procedure Act (because the agencies didn't use APA notice-and-comment procedures in implementing the IFRs), equal protection, and the Establishment Clause. The Northern District of California held that they were likely to succeed on their APA claim, and issued a nationwide injunction.
The Ninth Circuit affirmed, but limited the injunction to the plaintiff states.
The court first held that the case wasn't moot. The court said that while the agencies published final rules in November, those rules won't go into effect until January 14, 2019. In the meantime, the IFRs are in effect. And because the plaintiffs challenge the IFRs, their case isn't moot.
The court next held that the plaintiffs had standing, based on their increased costs for their already-existing contraception programs. "The states show, with reasonable probability, that the IFRs will first lead to women losing employer-sponsored contraceptive coverage, which will then result in economic harm to the states" because the states will have to fill the coverage loss through their existing free or subsidized contraceptive programs.
As to the APA, the court ruled that the plaintiffs were likely to succeed--that HHS violated notice-and-comment rulemaking under the APA. The court held that the government's interests in eliminating regulatory uncertainty, eliminating RFRA violations, and reducing the cost of health insurance were insufficient to bypass notice-and-comment procedures. As to regulatory uncertainty, the court said it "is not by itself good cause" to bypass APA procedures. As to RFRA, the court said that "the agencies' reliance on this justification was not a reasoned decision based on findings in the record." And as to reducing health insurance costs, the court said that "[t]his is speculation unsupported by the administrative record and is not sufficient to constitute good cause." The court also said that the agencies lacked statutory authority to bypass notice-and-comment procedures.
But the court narrowed the district court's nationwide preliminary injunction, and applied it only to the plaintiff states.
Judge Kleinfeld dissented, arguing that the plaintiffs lacked standing, because "their injury is what the Supreme Court calls 'self-inflicted,' because it arises solely from their legislative decisions to pay" for contraception-access programs.
Wednesday, December 12, 2018
Judge Jon S. Tigar (N.D. Cal.) ruled that San Francisco lacked standing to challenge the Trump Administration's rescission of administrative guidance documents related to various federal civil rights and immigration statutes. The ruling is a victory for the Trump Administration and its deregulatory agenda.
The case, San Francisco v. Whitaker, arose out of President Trump's executive order instructing agencies to identify regulatory actions that were "outdated, unnecessary, or ineffective" as candidates for repeal, modification, or replacement. Then-AG Sessions issued a memo stating that DOJ would no longer "issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)." DOJ subsequently announced that it would rescind 25 guidance documents.
San Francisco sued to stop the DOJ from rescinding eight of those, arguing that the rescission was arbitrary and capricious under the Administrative Procedure Act. (The eight relate to the ADA, the FHA, the INA, and various fee and fine practices.)
The court ruled that San Francisco lacked standing. While the court said that San Francisco could assert procedural standing or organizational standing, it still needed to show a harm--and it didn't. The city's theory of harm varied depending on the particular guidance document, but in general the court held that it failed to show that rescission would interfere with its interest in regulation, or increase the risk of enforcement action against it, or that it failed to show a sufficiently tight connection between the rescission and any harm to the city.
The ruling means that the rescission can move forward, ultimately curbing federal regulation of these provisions. Establishing standing to challenge a roll-back on regulations is always trickier than establishing standing to challenge regulations themselves, and it's not clear if or how another plaintiff might show a harm to challenge these or other rescission documents.
In the wake of the government's release of sentencing memos for Michael Cohen--and their fingering of President Trump for unlawful acts during the campaign--there's renewed interest in whether a president can be criminally charged.
Marty Lederman has an op-ed in today's NYT, where he argues that President Trump could be indicted, but that there are bigger fish to fry in the Mueller investigation:
Perhaps Mr. Trump will become the first president to face criminal charges. Perhaps not. But that's the least of it. We'd be wise to shift our attention from the unlikely possibility of a trial to the much more important matter of what the Mueller investigation might tell us about Mr. Trump's relationships with Russia and whether they compromise his ability to protect and defend the nation.
Tuesday, December 11, 2018
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)
Friday, December 7, 2018
If you want to know what William P. Barr, President Trump's nominee for Attorney General, thinks about congressional interference with executive-branch operations and the "unitary executive," check out his 1989 memo as assistant attorney general in the OLC. (Spoiler alert: He's an aggressive proponent of a unitary executive, in ways both familiar and less familiar in today's constitutional politics.)
Notably--and contrary to a trend among unitary executive advocates--he doesn't disavow Morrison v. Olson (at least not in this memo); he just says that most or all independent offices are distinguishable from the independent counsel (and therefore unconstitutional even under that case). Given the current political winds, it seems likely his position on Morrison will likely change. In any event, this doesn't necessarily say anything about his position on Special Counsel Mueller: Mueller was appointed pursuant to DOJ regs, not a congressional statute, so doesn't raise the same separation-of-powers concerns as the old independent counsel.
The memo outlines these "Common Legislative Encroachments On Executive Branch Authority":
- Interference with the President's Appointment Power, including incompatibility and ineligibility issues (e.g., appointing members of Congress to executive-branch commissions that have more than advisory roles), directing the president to appoint from an approved list of candidates, and delegations of authority to positions outside the executive branch (e.g., qui tam statutes).
- The creation of hybrid commissions that reach into executive authority.
- Attempts to constraint the president's "removal power."
- "Micromanagement of the Executive Branch," by mandating certain executive processes and bureaucratic organization.
- "Attempts to Gain Access to Sensitive Executive Branch Information."
- Legislative vetoes (even after Chadha).
- Requirements that executive officials submit legislation to Congress.
- Restrictions on the president's recess appointment power.
Wednesday, December 5, 2018