Thursday, March 26, 2020

First Circuit Strikes DOJ's Restrictions on Sanctuary Cities

The First Circuit this week became the latest appellate court to rule that the Administration lacked statutory authority to rein in and punish sanctuary cities. The court ruled that the Justice Department exceeded its statutory authority in imposing conditions on a DOJ law-enforcement grant program (the Byrne JAG program) for local jurisdictions.

The ruling was the latest victory for sanctuary jurisdictions. At the same time, it deepens a split: the First, Third, Seventh, and Ninth Circuits have all now struck DOJ's conditions; only the Second Circuit has upheld them. The ruling comes closely on the heels of the Trump Administration's announcement that it'll start withholding Byrne JAG funds from noncomplying jurisdictions based on the Second Circuit ruling.

We last posted, on the Second Circuit ruling, here.

The cases all involve three DOJ-imposed conditions on local jurisdictions' continued receipt of Byrne JAG funds: (1) a "notice" condition that requires grant recipients to provide notice to federal immigration authorities when they release particular (undocumented) individuals from custody; (2) an "access" condition that requires local authorities to grant access to prisons, jails, and the like to federal immigration enforcement officers; and (3) a "certification" condition that requires local authorities to certifiy compliance with 8 U.S.C. Sec. 1373, which prohibits state and local governments from restricting their officers from communicating with federal immigration enforcement officers. Under DOJ's order, if cities don't comply with the new conditions, they'll lose funding. 

In each of the cases, sanctuary jurisdictions sued, arguing that DOJ lacked statutory authority to impose the conditions, that the conditions violated the Administrative Procedure Act, and that the conditions violated the Constitution (separation of powers, because Congress, not the Administration, gets to impose conditions; and federalism principles). 

The First Circuit ruled that DOJ lacked statutory authority to impose the conditions, and therefore didnt' touch the APA or constitutional claims. In short, the court said that "DOJ's kitchen-sink-full of clever legal arguments" didn't cut it--that DOJ doesn't have statutory authority to unilaterally impose these conditions. The court took specific issue with the analysis by the Second Circuit, sharpening the points of dispute.

The ruling makes it even surer now (if that's possible) that this issue is headed to the Supreme Court--assuming, that is, that the Administration doesn't change in the 2020 election, or that this Administration doesn't change its position.

March 26, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, March 13, 2020

D.C. Circuit Vacates McGahn Ruling, Sets for Rehearing En Banc

The full D.C. Circuit voted to reconsider the question whether a House committee has standing to sue a former executive branch officer. The court ordered rehearing in Committee on the Judiciary v. McGahn (and House of Representatives v. Mnuchin, which raises the same standing question) and vacated the panel's earlier ruling that the Committee lacked standing.

Recall that the panel held that the Judiciary Committee lacked standing to sue McGahn, a former executive branch official. In short, the court said that federal courts can't hear pure disputes between the coordinate branches; instead, there must be a plaintiff who was personally harmed in order to get the claim into federal court.

Today's order undoes that ruling and sets the case for rehearing before the entire D.C. Circuit.

This doesn't bode well for McGahn (and Mnuchin, and the Trump Administration). But whatever the en banc court ultimately says, this case is surely headed to the Supreme Court.

March 13, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, March 12, 2020

D.C. Circuit Authorizes Release of Full Mueller Report to House

The D.C. Circuit this week upheld a district court ruling that auhorized release of the full, unredacted Mueller Report to the House Judiciary Committee. The ruling, if upheld on inevitable appeal, means that the Committee'll get its hands on the full report, plus other, supporting grand jury materials from the Mueller investigation.

The ruling deals a sharp blow to the Trump Administration and DOJ. It means that the Committee can decide for itself, based on the full Mueller Report and additional grand jury materials, whether Administration witnesses lied to Congress or to the Mueller team, and the extent to which AG Barr misrepresented the full Report. It also means that the Committee can see for itself the full extent of any collaboration between the Trump campaign and Russia, and campaign and Administration efforts to conceal any collaboration or otherwise to obstruct congressional investigations.

But don't think that this means that we'll see the full Report anytime soon. First, there's the matter of the inevitable application for a stay, and appeal. Second, the court's holding hinges, in part, on the Committee's plan to protect the material from public release and to use only those portions that it needs.

The case arose when, July 26, 2019, the Committee filed an application for release of certain grand jury materials from the Mueller investigation with the federal district court. The Committee sought release of three categories of grand jury materials: (1) all portions of the Mueller Report that were redacted pursuant to the general grand-jury secrecy rule in Rule 6(e) of the Federal Rules of Criminal Procedure, (2) any portions of grand jury materials (transcripts, exhibits) that were referenced in those redactions, and (3) any other underlying grand jury material that related directly to certain individuals and events described in the Mueller Report.

The Committee sought release pursuant to the "judicial proceeding" exception, in Rule 6(e)(3)(E)(i), to the general rule of grand jury secrecy. The exception allows for release of grand jury materials in a "judicial proceeding," where the requesting party can demonstrate a particularized need for the material. After in camera review of a portion (but not all) of the requested materials, the district court held that the Senate's impeachment trial of President Trump met the "judicial proceeding" requirement, and that the Committee demonstrated a particularized need for the material. The court authorized release of the first two categories of grand jury material requested by the Committee.

(You might wonder how the Committee request for release relates to impeachment. Here's how: The Committee Report on Impeachment said that the conduct in the Articles of Impeachment was consistent with President Trump's behavior with regard to Russia and the Mueller investigation. Moreover, the Committee's impeachment investigation related to the Mueller report is ongoing, and may lead to addition articles of impeachment.)

The D.C. Circuit affirmed. The court held that the Senate's impeachment trial is, indeed, a "judicial proceeding" under Rule 6(e) (and that the Committee's investigation is part of, preliminary to, a Senate trial). It held that constitutional text and history, circuit precedent, and past practice all uniformly supported this conclusion. (On this point, "[i]t is only the President's categorical resistance and the Department's objection that are unprecedented.")

The court went on to say that the Committee demonstrated a particuularized need, because, among other things, the Committee may yet issue more articles of impeachment related to the President's behavior with regard to Russia and the Mueller investigation. 

Judge Rao dissented. She argued that the lower court actually made two moves--one to "authorize" release of the material, and the other to "order" DOJ to release it. She agreed that the court could authorize release, but she argued that it couldn't order DOJ to release the material, because the Committee lacked standing to bring a claim against the Executive Branch under the court's recent ruling in the McGahn case.

Both the court and Judge Griffith, in concurrence, wrote that the district court did no such thing. They both reminded that grand jury materials are judicial records, and that DOJ only holds them. As a result, this wasn't a dispute between the Committee and the Executive Branch. Instead, it was merely an application by the Committee to the courts, which the Executive Branch decided to oppose.

March 12, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, March 6, 2020

More Cases Challenge Trump's Reprogramming of Funds for Border Wall

Plaintiffs filed two new cases this week challenging President Trump's moves to shift around congressionally appropriated federal money for FY 2020 to fund the border wall. A group of states filed one suit; the Sierra Club and the ACLU filed the other. Both are in the Northern District of California.

Both suits challenge the administration's shift of funds from military accounts and President Trump's declaration of a national emergency in order to reprogram federal funds for the wall. The complaints point out that Congress specifically declined to provide funding for the wall in the 2020 Consolidated Appropriations Act, and that the administration's moves "circumvent Congress's exclusive control over appropriations." 

The suits come soon on the heels of yet another ruling enjoining the administration from reprogramming military funds. This one, from the Western District of Washington, says that the administration violated the Administrative Procedure Act in reprogramming funds, because reprogramming violated the CAA and because the administration didn't have other statutory authority to do it. The court entered a permanent injunction, halting the government from reprogramming, but only insofar as it took money away from a military project in the plaintiff-state.

The Washington court said this about last summer's Supreme Court ruling that stayed a different court's permanent injunction:

the Court believes that an injunction narrowly tailored to the State-specific injuries alleged in this case need not be stayed pending appeal. As noted above, two sister courts have already enjoined the Defendants' actions as to the entire $3.6 billion in redirected funds. Those injunctions have been stayed by various courts pending appeal [including the Supreme Court, in last summer's ruling]. The Court concludes that an injunction relating to only the $88.96 million appropriated to the Bangor Project is not necessarily controlled by or subject to the stays entered by the Supreme Court, the Fifth Circuit, or the Northern District of California. That is because those cases involve different plaintiffs and materially different alleged injuries. The Supreme Court reversed the Ninth Circuit and granted Defendants' application for a stay, noting that "[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005. . . . These rationales do not apply to the instant case, which involves distinct causes of action, a different plaintiff, different alleged injuries, and a different basis for standing. 

The two new complaints are similarly tailored to take account of the Supreme Court's ruling last summer.

March 6, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, March 5, 2020

Daily Read: Attorney General Barr's Reputation at Issue in Mueller Report FOIA Litigation

The issue of the Attorney General's candor is central to Freedom of Information Act (FOIA) litigation seeking the unredacted Mueller Report. In the consolidated cases of Electronic Freedom Foundation v. DOJ, and Jason Leopold & BuzzFeed News v. DOJ, the plaintiffs essentially challenge the basis of FOIA exemptions which DOJ has listed as justifying the numerous redactions.

In his Opinion today, United States District Judge for the District of Columbia, Reggie Walton, granted the plaintiffs' requests that the court conduct in camera review of the unredacted version of the Mueller Report. What makes the Opinion noteworthy is Judge Walton's explicit statements regarding the untrustworthiness of the Attorney General that justified the need for in camera review. After a detailed discussion of the circumstances, Judge Walton wrote:

Although Attorney General Barr can be commended for his effort to expeditiously release a summary of Special Counsel Mueller’s principal conclusions in the public interest, the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report—a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions. In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be “subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests” cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report, id., Ex. 7 (April 18, 2019 Letter) at 3, and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr’s actions and representations.

[brackets in original; bolding added].

Later in the opinion, Judge Walton continued:

Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification. Adherence to the FOIA’s objective of keeping the American public informed of what its government is up to demands nothing less.

Judge Walton, who was appointed to the federal court in 2001 and who has interestingly served as Judge and Presiding Judge of the United States Foreign Intelligence Surveillance Court, ordered the DOJ to

submit the unredacted version of the Mueller Report to the Court for in camera review. If, after reviewing the unredacted version of the Mueller Report, the Court concludes that all of the information has been appropriately withheld under the claimed FOIA exemptions, it will issue a supplemental Memorandum Opinion and Order granting the Department’s motion for summary judgment on that ground and denying the plaintiffs’ cross- motions. On the other hand, if the Court concludes after its in camera review that any of the redacted information was inappropriately withheld, it will issue a supplemental Memorandum Opinion and Order that comports with that finding.

A federal judge's opinion that the Attorney General's "lack of candor" supports an independent judicial examination of redacted material implicates separation of powers issues, to be sure, but it is also yet another indication of the lack of confidence in the Attorney General.

March 5, 2020 in Courts and Judging, Executive Authority, Interpretation, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Second Circuit Upholds Fed's Anti-Sanctuary Cities Conditions

The Second Circuit last week upheld the Justice Department's efforts to clamp down on sanctuary cities against by-now-familiar constitutional and statutory challenges. The ruling conflicts with cases from the Third, Seventh, and Ninth Circuits, and, as if there were ever any doubt, puts the issue on track for Supreme Court review.

The case, like the others, arose when AG Sessions unilaterally imposed three conditions on local governments receiving law-enforcement grants under DOJ's Byrne program. Sessions required grant recipients (1) to comply with federal law prohibiting state and local restrictions on their officers from communicating with federal authorities about a person's immigration status (in 8 U.S.C. Sec. 1373), (2) to provide federal authorities with release dates of unauthorized aliens, and (3) to give federal immigration officers access to incarcerated unauthorized aliens.

The conditions were designed to clamp down on sanctuary jurisdictions.

State and local governments sued, arguing that the conditions violated the separation of powers (because only Congress, not the Executive Branch, has authority to place conditions on federal funds), the Tenth Amendment (because 8 U.S.C. Sec. 1373 tells state and local governemnts what they can't do (restrict communication between their officers and the feds) in violation of the anti-commandeering principle, and the Administrative Procedure Act (becuase the conditions, even if authorized by statute, are arbitrary and capricious). 

The Second Circuit is the first circuit court to side with the government. 

The court ruled that the Byrne program, in 34 U.S.C. Sec. 10153, gave the AG broad authority to implement the program, including broad enough authority to impose the three conditions. As a result, the court held that the conditions didn't violate the APA's prohibition on unlawful agency action or the separation of powers.

As to the first condition--the one that requires Byrne grant recipients to certify comliance with Section 1373--the court rejected the plaintiffs' Tenth Amendment challenge. The court held that the amount of money at issue wasn't enough to "turn pressure into compulsion" for the plaintiffs to comply with Section 1373, and therefore certification of compliance with Section 1373 was a constitutionally permissible condition on the receipt of federal funds.

March 5, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, February 28, 2020

D.C. Circuit Tosses House Judiciary Committee Suit to Compel McGahn Testimony

The D.C. Circuit dismissed the House Judiciary Committee's lawsuit seeking to compel the testimony of former White House Counsel Don McGahn. The court held that the Committee failed to assert a judicially cognizable injury, and that the case was therefore not justiciable under Article III.

The ruling deals a sharp blow to Congress's authority to compel testimony of, and to obtain information from, Executive Branch officials. It means that congressional lawsuits against Executive Branch officials to compel testimony are nonjusticiable, and that Congress will have to use its own powers (appropriations, appointments, contempt, impeachment) to obtain that testimony and information. As we've seen, however, those tools often don't do the job.

In short, the ruling invites presidential noncooperation with congressional oversight and investigations and, as a practical matter, with a noncooperative president, could all but mark the end of effective congressional oversight of the administration. Having said that, this'll surely be appealed.

We posted on the district court ruling here.

The court, in an opinion penned by Judge Griffith, ruled that the Committee lacked a judicially cognizable injury, and therefore lacked standing under Article III. It said that the courts have no business refereeing a pure dispute between Congress and the Executive Branch. It distinguished cases where the courts have ruled in inter-branch disputes, saying that those cases always involved a direct, cognizable harm to an individual, not a branch of government.

In this case, the Committee's dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the "rights of individuals" or some entity beyond the federal government. The Committee is not a private entity seeking vindication of its "constitutional rights and liberties . . . against oppressive or discriminatory government action." Nor does the Committee seek the "production or nonproduction of specified evidence . . . in a pending criminal case"--the "kind of controversy" threatening individual liberty that "courts traditionally resolve."

Instead, the Committee claims that the Executive Branch's assertion of a constitutional privilege is "obstructing the Committee's investigation." That obstruction may seriously and even unlawfully hinder the Committee's efforts to probe presidential wrongdoing, but it is not a "judicially cognizable" injury.

Judge Henderson concurred, but added that McGahn's arguments on both justiciability and the merits went too far:

First, McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute; I do not believe, however, Supreme Court precedent supports a holding of that scope. Second, McGahn's assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent.

Judge Rogers dissented:

The House comes to the court in light of the President's blanket and unprecedented order that no member of the Executive Branch shall comply with the subpoena duly issued by an authorized House Committee. Exercising jurisdiction over the Committee's case is not an instant of judicial encroachment on the prerogatives of another Branch, because subpoena enforcement is a traditional and commonplace function of the federal courts. The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties.

February 28, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Thursday, February 20, 2020

Check it Out: Sunstein on an Independent Justice Department

Check out Cass Sunstein's piece at the NYT, arguing that it's time to (re)consider creating an independent Justice Department by statute (and not just by tradition). 

February 20, 2020 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Wednesday, February 19, 2020

Is President Trump the Chief Law Enforcement Officer?

Josh Blackman, arguing at WaPo, says yes, pointing to the Vesting Clause and early history; Donald Ayer, arguing in The Atlantic, suggests no, pointing to post-Watergate reforms that created independence at DOJ. Here's PolitiFact on the question, from October last year.

February 19, 2020 in Executive Authority | Permalink | Comments (0)

Tuesday, February 18, 2020

D.C. Circuit Rebuffs HHS's Approval of Arkansas Work Requirements for Medicaid

The D.C. Circuit last week ruled that HHS Secretary Azar's approval of Arkansas's proposed work required for Medicaid recipients was arbitrary and capricious in violation of the Administrative Procedure Act. The ruling vacates the Secretary's approval and means that the work requirements can't move forward, at least unless and until the Secretary provides an explanation for authorization that's consistent with the Medicaid Act.

We last posted on this case (and a similar case out of Kentucky) here. (After the district court ruled against Kentucky's approval, that state dropped its program and moved for voluntary dismissal.)

The case arose when Arkansas sought HHS approval for a work-requirement demonstration project for its Medicaid program. The project would mean that Medicaid recipients in the state would have to work, with some exceptions, in order to continue to receive Medicaid.

HHS Secretary Azar approved the project. State residents sued, arguing that the approval was arbitrary and capricious in violation of the APA. The district court agreed, and last week the D.C. Circuit affirmed.

Like the district court, the circuit court said that Secretary Azar's explanation for approving the project didn't square with the purpose of Medicaid, to provide medical assistance. Here's the long and short of it:

Instead of analyzing whether the demonstration would promote the objective of providing coverage, the Secretary identified three alternative objectives: "whether the demonstration as amended was likely to assist in improving health outcomes; whether it would address behavioral and social factor that influence health outcomes; and whether it would incentivize beneficiaries to engage in their own health care and achieve better health outcomes." These three alternative objectives all point to better health outcomes as the objective of Medicaid, but that alternative objective lacks textual support. Indeed, the statute makes no mention of that objective.

While furnishing health care coverage and better health outcomes may be connected goals, the text specifically addresses only coverage. . . . That means that Congress selected to achieve the objectives of Medicaid was to provide health care coverage to populations that otherwise could not afford it. 

February 18, 2020 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, February 17, 2020

Check it Out: DOJ Alumni Letter Calling for AG Barr's Resignation

Here's the letter that's getting so much attention. And here's the gist:

Although there are times when political leadership appropriately weighs in on individual prosecutions, it is unheard of for the Department's top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here--after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.

Such behavior is a grave threat to the fair administration of justice.

February 17, 2020 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, February 11, 2020

New York Sues Feds for Dropping Trusted Traveler

New York yesterday sued Homeland Security officials for dropping the state from the Customs and Border Patrol's Trusted Traveler program in retribution for the state adopting its Green Light Law. That Law allows unauthorized aliens to get a drivers license in the state, and, in order to facilitate that, prohibits state officials from sharing an applicant's personal information from the DMV database with federal immigration authorities, except where disclosure is pursuant to a lawful court order or judicial warrant.

New York argues in that CBP's move violates the "equal state sovereignty" principle in the Tenth Amendment; that it's unduly coercive in violation of the Tenth Amendment; that it is wholly irrational in violation of due process; and that it violates the Administrative Procedure Act (for lack of notice-and-comment rulemaking, for being arbitrary and capricious, and for violating federal law).

On that last point--violating federal law--New York contends that the move violates the Intelligence Reform and Terrorism Prevention Act of 2004 and implementing regulations. That's because the IRTPA directs the Secretary to "ensure that the international trusted traveler program includes as many participants as practicable," yet CBP's move takes millions of New Yorkers out of the program. Moreover, nothing in the program requires applicants to submit state drivers license information, and CBP can get any information they need to run background checks from other state sources, which New York readily shares with the FBI. In other words: CBP doesn't need information from New York's DMV database.

The complaint asks the court to declare CBP's move unconstitutional and in violation of the APA, and to enjoin enforcement of it.

February 11, 2020 in Cases and Case Materials, Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0)

Friday, February 7, 2020

Check it Out: Entous and Osnos on Assassination

Check out Adam Entous's and Evan Osnos's piece in The New Yorker, Qassem Suleimani and How Nations Decide to Kill. Here's from the piece:

The President's dismissal of the question of legality [of Suleimani's killing] betrayed a grim truth: a state's decision to kill hinges less on definitive matters of law than on a set of highly maleable political, moral, and visceral considerations. In the case of Suleimani, Trump's order was the culmination of a grand strategic gamble to change the Middle East, and the opening of a potentially harrowing new front in the use of assassination.

February 7, 2020 in Executive Authority, International, News, Separation of Powers | Permalink | Comments (0)

Tuesday, January 21, 2020

OLC Says House Committees Lack Subpoena Power in Impeachment Investigation

The Office of Legal Counsel opined this weekend that House committees investigating articles of impeachment last fall against President Trump lacked legal authority to issue subpoenas to administration officials.

The opinion, dated January 19, appears to attempt to provide legal bases to President Trump's defenders in the Senate, who argue that the administration's categorical decision to ignore those subpoenas did not constitute obstruction of Congress (but instead was based on legal reasons why the subpoenas themselves were invalid).

The OLC memo is not the law, however; it's merely an opinion. Still, it gives President Trump's defenders legal arguments why his non-cooperation did not constitute obstruction.

(OLC's reasoning is quite formalistic--characteristic of this administration when arguing over congressional authority to investigate anything. For a different take--one that recognizes that there's not always a bright line between Congress's powers of oversight and its power of impeachment--check out this analysis by the Congressional Research Service.)

In short, OLC reasoned this way:

(1) Speaker Pelosi announced on September 24, 2019, that "the House of Representatives is moving forward with an official impeachment inquiry;"

(2) that announcement did not legally authorize an actual impeachment inquiry, because the full House didn't vote to authorize such an inquiry;

(3) House committees nevertheless issued subpoenas after September 24 under their impeachment-investigation authority and their general investigative and oversight authority;

(4) those subpoenas could not have been issued validly under the committees' impeachment authority, because, as in (2), there was no legally authorized impeachment inquiry;

(5) when the House came around to authorize an impeachment inquiry, it didn't ratify the earlier-issued subpoenas, so they are still invalid; and

(6) the committees lacked authority to issue the subpoenas under their general investigative and oversight authorities.

 

January 21, 2020 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, January 16, 2020

Daily Read: GAO Finds Executive Wrongfully Withheld Funds to Ukraine

In its Report issued today, the United States Government Accountability Office found that the Executive wrongfully withheld funds Congress appropriated to Ukraine.

The Report begins:

Office of Management and Budget—Withholding of Ukraine Security Assistance

B-331564 January 16, 2020

In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.

Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.

The Report explains the constitutional and statutory frameworks, including the ICA, thusly:

The Constitution specifically vests Congress with the power of the purse, providing that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. Id., art. I, § 7, cl. 2, 3. The President is not vested with the power to ignore or amend any such duly enacted law. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (the Constitution does not authorize the President “to enact, to amend, or to repeal statutes”). Instead, he must “faithfully execute” the law as Congress enacts it. U.S. Const., art. II, § 3.

An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability. See B-329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold). In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA. See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).

The Constitution grants the President no unilateral authority to withhold funds from obligation. See B-135564, July 26, 1973. Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA. See 2 U.S.C. §§ 681–688. The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”4 2 U.S.C.§ 684. The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”5 2 U.S.C. § 683.

In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal. 2 U.S.C. §§ 683–684. These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA. See 2 U.S.C. §§ 683–684; B-237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).

The burden to justify a withholding of budget authority rests with the executive branch.

The Report found that the Executive did not meet that burden.

Obviously, this Report will not end the matter. The security funds to Ukraine are at the core of the impeachment of the President by the House of Representatives; the Articles of Impeachment are being delivered to the Senate for trial. Moreover, the Report itself ends by discussing the problem of the Executive's lack of cooperation: 

OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.

We consider a reluctance to provide a fulsome response to have constitutional significance. GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse. We trust that State and OMB will provide the information needed.

[emphasis added].

 

January 16, 2020 in Congressional Authority, Current Affairs, Executive Authority, Separation of Powers | Permalink | Comments (0)

Wednesday, January 15, 2020

District Court Halts Trump Order Allowing Cities, States to Veto Refugee Resettlement

Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.

President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.

The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:

[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.

The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")

The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.

The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.

January 15, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, January 9, 2020

Daily Read: NYC Bar Asks Congress to Scrutinize Attorney General

In a six page letter, the New York City Bar Association urged Congress to "commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice." 

The bar association letter discusses four specific instances of public comments that were inconsistent with the duties of the Attorney General

to act impartially, to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities are bedrock obligations for government lawyers. In the context of pending investigations, government lawyers also are obliged to be circumspect in their public statements and to avoid prejudging the outcomes of those investigations.

The letter also remarks that the specific "comments follow and are reminiscent of Mr. Barr’s earlier mischaracterizations of the Mueller Report, prior to his release of a redacted version of it, in which Mr. Barr claimed the special counsel had found insufficient evidence of any obstruction of justice by President Trump—a material mischaracterization of the Mueller Report and a proposition rejected by more than 1,000 former federal prosecutors based on the facts set forth in the Mueller Report."

In brief, the four instances are:

  • On October 11, 2019, in an invitation-only speech at the University of Notre Dame, Mr. Barr launched a partisan attack against “so called ‘progressives’” for supposedly waging a “campaign to destroy the traditional moral order.”
  • On November 15, 2019, in a speech at the Federalist Society’s National Lawyers Convention, Mr. Barr again vilified “progressives” and “the Left” (characterizing as “the other side” those who “oppose this President”) in highly partisan terms.
  • On December 3, 2019, drawing from earlier remarks, Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.”
  • On December 10, 2019, in a television interview soon after DOJ’s Inspector General released a report finding no improper political motivation in the FBI’s commencement of a counterintelligence investigation into alleged ties between the Trump-Pence campaign and Russian officials in 2016, Mr. Barr publicly rejected the Inspector General’s findings, asserting instead that a separate ongoing investigation into the FBI’s actions that he personally had directed would likely reach a different conclusion.

The letter asks for Congressional oversight of Attorney General Barr because, in short,

In a troubling number of instances, Mr. Barr has spoken and acted in a manner communicating an impression that he views himself as serving as the Attorney General not for the entire nation, but more narrowly for certain segments of society—whether defined in terms of religion, ideology (his own “side,” to borrow the language of Mr. Barr’s Federalist Society speech) or party affiliation.

 

January 9, 2020 in Congressional Authority, Executive Authority, First Amendment, Theory | Permalink | Comments (0)

Wednesday, January 1, 2020

District Court Tosses Kupperman's Suit Over Congressional Subpoena, Absolute Privilege

Judge Richard Leon (D.D.C.) this week tossed former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman's lawsuit asking the court to determine which prevailed: a congressional subpoena, or the White House's instruction not to testify under an absolute privilege theory.

The ruling ends the case. It also means that we don't get another district court say-so on the White House theory of absolute privilege for senior presidential advisors. That means that we now have (1) a district court ruling from late November rejecting absolute privilege with respect to former White House Counsel Don McGahn's compelled testimony and (2) a 2008 district court ruling rejecting absolute privilege with respect to White House Counsel Harriet Mier's compelled testimony. No circuit court has yet to weigh in. We also have a series of Office of Legal Counsel memos, starting with the 1971 memo through the most recent McGahn memo. The district courts have flatly rejected the reasoning in these memos.

We previously posted on the case here.

Just a wee little bit of background (more on our earlier posted, link above): Kupperman, a former White House official, received a subpoena to testify in the impeachment inquiry from the House Permanent Select Committee on Intelligence; but the White House instructed him not to testify, claiming an absolute privilege against compelled congressional testimony. Kupperman sued, asking the court to resolve his dilemma. But the House moved forward with impeachment without his testimony, and the Committee argued that his case was moot.

Judge Leon agreed. The court said that there's no longer a case or controversy over the matter, that the matter isn't "capable or repetition but evading review" (because the House has said unequivocally that it won't re-issue a subpoena, ever), and that there's no chance of enforcement against Kupperman.

January 1, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, December 28, 2019

Ninth Circuit Refuses to Stay Injunction Against Trump's Immigration Health-Care Requirement

The Ninth Circuit last week refused to grant an emergency temporary stay of a district judge's temporary injunction against enforcement of President Trump's October 4 Proclamation that restricts entry into the United States by aliens "who will financial burden the United States healthcare system." The ruling means that the lower court's injunction stays in place, and the government cannot enforce the Proclamation. The court expedited review of the government's motion for a stay pending appeal, however, and will hear oral argument on January 9.

President Trump's proclamation, titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States," requires aliens to show proof of approved health insurance before getting a visa or otherwise entering the United States. Plaintiffs sued, arguing that the Proclamation exceeded the President's authority under law, that the President therefore engaged in impermissible lawmaking in violation of the separation of powers, and that the law impermissibly delegated lawmaking authority to the President in violation of the nondelegation doctrine. The district court agreed and issued a temporary injunction against enforcement of the Proclamation.

The Ninth Circuit most recently denied the government's request for an emergency temporary stay. The court wrote,

Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect.

The court went on to expedite briefing and oral argument on the government's motion for a stay pending appeal.

Judge Bress dissented, arguing that "the district court's decision is clearly wrong as a matter of law." According to Judge Bress, "[i]n the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine--among the most brittle limbs in American constitutional law--and a reading of 8 U.S.C. Sec. 1184(f) that the Supreme Court expressly rejected in Trump v. Hawaii.

December 28, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Nondelegation Doctrine, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, December 11, 2019

District Court Permanently Halts One Source of Reprogrammed Funds for Border Wall

Judge David Briones (W.D. Tex.) permanently enjoined the government from using one particular source of reprogrammed funds to build the border wall. The ruling follows an earlier one in which the court ruled that the particular reprogramming violated the Consolidated Appropriations Act of 2019. (We posted on that earlier ruling here.)

Recall that Judge Briones ruled in October that the government's attempt to reprogram Defense Department funds for "military construction projects" under 10 U.S.C. Sec. 2808 violated the CAA. Judge Briones then invited the parties to suggest an appropriate remedy. Yesterday's ruling grants that remedy.

Judge Briones held that the permanent injunction factors favored the plaintiffs. The court therefore issued a permanent injunction against the agency-head defendants to prevent them from reprogramming these particular funds.

The ruling (like the court's October ruling) doesn't halt reprogramming under Section 284, however. (The court noted that the Supreme Court this summer stayed a lower court ruling that halted Section 284 reprogramming.) All this means that the government can't reprogram under Section 2808 (unless and until it appeals and wins), but it can reprogram under Section 284.

December 11, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)