Friday, December 7, 2018

William Barr's Unitary Executive

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.

 

 

December 7, 2018 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, December 5, 2018

The State Funeral Service for Former President George H.W. Bush

C-Span has video and complete transcripts of the full service here, including the eulogy by former President George W. Bush.

December 5, 2018 in Executive Authority, News | Permalink | Comments (0)

Check it Out: Goitein on the President's Statutory Emergency Powers

Check out Elizabeth Goitein's piece in The Atlantic on the president's statutory emergency powers, and their potential misuse. From the piece:

the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from military composition to agricultural exports to public contracts. For the most part, the president is free to use any of them; the National Emergencies Act doesn't require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea. Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.

December 5, 2018 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Saturday, December 1, 2018

District Court Hands Sweeping Victory to Sanctuary Jurisdictions

Judge Edgardo Ramos (S.D.N.Y.) this week issued a sweeping ruling against the Trump Administration and its attempts to clamp down on sanctuary jurisdictions. The ruling is a significant victory for sanctuary jurisdictions, and a blow to the Trump Administration.

We last posted on sanctuary jurisdiction litigation here.

The case involves the states of New York, Connecticut, New Jersey, Rhode Island, and Washington; the commonwealths of Massachusetts and Virginia; and the city of New York. These jurisdictions sued the Administration to halt its unilateral anti-sanctuary conditions on their DOJ JAG/Byrne grants. In particular, they sought to stop the Administration from enforcing its three conditions on grant-receiving jurisdictions, on threat of losing their grants: (1) the "notice condition," which requires jurisdictions to give advance notice to DHS of the scheduled release date and time of aliens housed in state or local correctional facilities; (2) the "access condition," which requires jurisdictions to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status; and (3) the "1373 compliance" condition, which requires jurisdictions to comply with 8 U.S.C. Sec. 1373, which, in turn, prohibits state or local governments from prohibiting their officials from communicating with the federal government about the immigration status of detainees.

Importantly, former AG Sessions imposed these conditions himself, without specific congressional authority (or any congressional action).

The court ruled that DOJ lacked statutory authority to impose the conditions, and thus acted ultra vires and in violation of the separation of powers in imposing them unilaterally (that is, without specific congressional authority). It also ruled that the conditions were arbitrary and capricious in violation of the Administrative Procedure Act.

As to Section 1373, the court said that it violated the anti-commandeering principle, based on Murphy v. NCAA. (The anti-commandeering principle says that the federal government can't compel a state to act in its sovereign capacity. Recall that the Court held in Murphy extended this principle to when the government compels a state not to act--as in Section 1373.)

The court granted the plaintiffs' request for mandamus relief and ordered the government to reissue their Byrne grant award documents without the conditions. It also enjoined the government from imposing the conditions against any of the plaintiffs in the future.

December 1, 2018 in Cases and Case Materials, Executive Authority, Federalism, News, Separation of Powers, Tenth Amendment | Permalink | Comments (0)

Friday, November 23, 2018

New York State Judge Denies Trump Foundation Motion to Dismiss Complaint by State Attorney General

In her Decision and Order in People of State of New York v. Donald Trump (and three of the Trump children and the Trump Foundation), Justice Saliann Scarpulla denied Trumps' motion to dismiss the complaint by New York's Attorney General seeking dissolution of the Trump Foundation for violations of New York's Not-for-Profit Corporation Law and New York Estates, Powers, and Trusts Law.

 

The motion to dismiss argued in part that the state court lacked jurisdiction over "Mr. Trump" because pursuant to the Supremacy Clause, Article VI, a "sitting president may not be sued.  As Justice Scarpulla stated, the New York Attorney General noted that Trump "failed to cite a single case in which any court has dismissed a civil action against a sitting president on Supremacy Clause grounds, where, as here, the action is based on the president's unofficial acts." Justice Scarpulla relied the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to a civil action, and agreeing with another New York judge in Zervos v. Trump, held that this extended to state courts as well as federal. Justice Scarpulla rejected Trump's arguments that state courts are less fair to federal officials and less able to manage accommodations for a sitting president, pointing out that state courts were equally fair and competent. She also rejected the argument that state courts were less suited to address legal issues against federal officials:  "The dissenting opinion that Respondents cite for this proposition simply noted that federal courts have greater expertise than state courts in applying federal law" and here, "resolution of the petition is governed entirely by New York law, thus a federal court's alleged superior knowledge of federal law is inapposite."

Donald_J._Trump_Foundation_logoThe Trump respondents also argued the petition should be dismissed because of bias by the former Attorney General and the office as a whole.  Justice Scarpulla concluded that there was not a sufficient evidentiary basis for bias, conflict of interest, or abuse of confidence, and that "given the very serious allegations set forth in the petition," there is "no basis for finding that animus and bias were the sole motivating factors" for the petition.

The Trump respondents also raised grounds for dismissal of specific claims, including claims surrounding the misuse of foundation funds during the campaign; Justice Scarpulla rejected all of these.

Justice Scarpulla's order notes that the Foundation has been "attempting to voluntarily dissolve for the past two years" and urges the parties to reach an agreement leading to that dissolution. Justice Scarpulla did dismiss as moot one count of the petition which sought an injunction against continuing operation of the Foundation, stating that the Trumps were attempting to dissolve the foundation and that no injunction was necessary.

This decision by a trial judge — New York's Supreme Courts are trial courts — is not a final order, but if Trump's past litigation strategies are any indication, he will attempt to forestall answering the petition, which Justice Scarpulla ordered be done within 45 days.

 

November 23, 2018 in Campaign Finance, Current Affairs, Executive Authority, Federalism, Opinion Analysis, Supremacy Clause | Permalink | Comments (0)

Tuesday, November 20, 2018

Court Halts Trump's Restrictions on Asylum

Judge Jon S. Tigar (N.D. Cal.) issued a temporary restraining order today against President Trump's move to prevent aliens along the Mexico border from applying for asylum except at ports of entry. The court ruled that government action violated the plain terms of the Immigration and Naturalization Act, and, alternatively, that there were "serious questions" about whether the government could bypass notice-and-comment procedures under the Administrative Procedure Act (as it did).

The order applies nationwide.

The ruling strikes a substantial blow against President Trump's effort to restrict aliens' ability to apply for asylum. The next step is a show-cause hearing on December 19, during which Judge Tigar will hear arguments whether the government "should not be enjoined from taking any action continuing to implement the Rule and ordered to return to the pre-Rule practices for processing asylum applications, pending the final disposition of this action."

DOJ and DHS published a joint interim rule, bypassing notice-and-comment procedures under the APA's "military or foreign affairs function" and "good cause" exemptions, that renders an alien categorically ineligible for asylum "if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico . . . ." President Trump then issued a presidential proclamation (claiming authority under 8 U.S.C. Secs. 1182(f) and 1185(a)) suspending "[t]he entry of any alien into the United States across the international boundary between the United States and Mexico" for ninety days, but exempts "any alien who enters the United States at a port of entry and properly presents for inspection."

The problem is that this runs headlong into the INA. 8 U.S.C. Sec. 1158(a)(1) (emphasis added) provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum . . . .

In short: the government's rule violates the statute. "Basic separation of powers principles dictate that an agency may not promulgate a rule or regulation that renders Congress's words a nullity."

The court rejected the government's argument that its rule is consistent with the statute, because the statute says that an alien can apply for asylum, while the rule uses the port-of-entry requirement to render an alien ineligible for asylum. "The argument strains credulity. To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter. There is simply no way to harmonize the two."

The court went on to say that there were "serious questions" about the government's invocation of the "foreign affairs" and "good cause" exceptions to the APA's notice-and-comment requirements. Although the court didn't have to rule on the exceptions (because it held that the rule violates the plain terms of the INA), it did, for completeness.

November 20, 2018 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Senators Sue Over Whitaker Designation

Senators Richard Blumenthal, Sheldon Whitehouse, and Mazie Hirono filed suit yesterday against "purported Acting Attorney General" Matthew Whitaker and President Trump, seeking declaratory and injunctive relief against President Trump's designation of Whitaker as Acting AG.

The complaint contends that the designation (done under the purported authority of the Federal Vacancies Reform Act) violated the Appointments Clause and sidestepped the DOJ succession statute. (These arguments are similar to the points in the filing last week seeking Supreme Court review of the designation.)

The complaint points especially to the Senate's advice-and-consent role in principal officer appointments as a separation-of-powers check. That's partly to establish standing: "By designating Mr. Whitaker to perform the functions and duties of the Attorney General without having been subject to Senate confirmation, President Trump has unlawfully denied the Plaintiffs their right, as sitting U.S. Senators, to vote on whether to consent to his appointment to that role."

But it's also to illustrate why the Senate's role matters. Quoting Federalist 76, the complaint says:

It is precisely so that matters like these can be thoroughly examined by Senators that the Constitution prohibits the appointment of principal federal Officers without the Senate's advice and consent. That safeguard, the Framers recognized, helps prevent the President from appointing Officers with "no other merit than that of . . . possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." The Framers regarded the advice-and-consent requirement as "an excellent check upon a spirit of favoritism in the President" that "would tend greatly to prevent the appointment of unfit characters from State prejudice, and from family connection, [and] from personal attachment."

November 20, 2018 in Appointment and Removal Powers, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, November 16, 2018

Case Seeks SCOTUS Review of Whitaker Appointment

Tom Goldstein, frequent Supreme Court litigator and publisher of SCOTUSblog, asked the Supreme Court today to rule on the legality of President Trump's designation of Matthew Whitaker as Acting AG. The issue came up in Goldstein's motion to substitute Rod Rosenstein (and not Matthew Whitaker) in a case against the AG.

The case pits the AG Succession Act (which specifies an automatic line of succession for the office) against the Vacancies Reform Act (which applies more broadly and gives the President more flexibility in naming an acting officer). It also asks whether the President's designation violated the Appointments Clause, because the AG is an "officer" that requires Senate confirmation.

The government's position is set out here, in the OLC memo concluding that President Trump had authority to designate Whitaker. Walter Dellinger and Marty Lederman have an outstanding "initial reactions" here, at Just Security.

November 16, 2018 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Monday, October 29, 2018

Daily Read: Posse Comitatus and the Constitution

The reported announcement that the United States is sending "5,200 troops, military helicopters and giant spools of razor wire to the Mexican border in the coming days to brace for the arrival of Central American migrants President Trump is calling 'an invasion," raises the question of Presidential authority under the Constitution.

A good read is by Ohio State University/Mortiz College of Law Professor Dakota S. Rudesill, The Land and Naval Forces Clause, 86 University of Cincinnati Law Review 391 (2018), available on ssrn.

Rudesill.2Professor Rudesill (pictured) asks "What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws?"

He notes that there are a series of such statutory frameworks, including the Posse Comitatus Act and its relatives which generally operates  as a default ban on active duty federal armed forces engaging in law enforcement. He argues that the best textual footing for such statutes is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” 

Rudesill concludes:

The statutory frameworks at the heart of the national security legal regime that find textual grounding in the Forces Clause are important to the republic at any moment. There are constant and enduring operational pressures and political incentives for the Executive Branch to disregard the law and its liberty/security balancing work. These statutory frameworks are of special importance, however, in a time of chronic national insecurity: war without end against transnational terrorist networks and within cyberspace, and the alarm and constant engagement of the military and intelligence apparatus they engender. These statutory frameworks safeguard liberty in the atmosphere of uncertainty and fear that national insecurity, together with dysfunctional government and volatile politics, produces. Such anxiety was not, of course, unknown to the Framers . . . .

He contends that Courts could take up the issues, but also Congress has an important role:

Congress’s authority to govern and regulate the land and naval forces and control their Commander in Chief is contingent. The Forces Clause does not stipulate a one-way ratchet toward greater liberty protections. Congress could choose not to use the Forces Clause’s authority – it could acquiesce to harsh presidential discipline of the military, authoritarian employment of it against the people, or reckless use of it abroad. Congress could use the Clause’s authority to weaken FISA, the Posse Comitatus Act, and other liberty-protecting laws. Or, Congress could choose to use the Clause’s authority actively – and more explicitly and consistently – to balance liberty and security considerations in a manner that protects both. The Clause’s potential, like the republic’s fate, ultimately resides with Congress and the love of liberty among the people the Article I branch represents, governs, and protects.

An interesting read as the composition of Congress is at issue in the midterm election.

October 29, 2018 in Congressional Authority, Executive Authority, Scholarship | Permalink | Comments (0)

Wednesday, October 3, 2018

Non-Delegation Challenge to Sex Offender Statutes Faces Uphill Battle at Court

The Supreme Court heard oral arguments yesterday in Gundy v. United States, the case testing whether the federal Sex Offender Registration and Notification Act delegated too much authority to the Attorney General to determine the Act's application to pre-Act offenders. Our preview is here.

If the arguments any any predictor, the Non-Delegation Doctrine challenge to the Act faces an uphill battle. Indeed, there was only one Justice, Justice Gorsuch, who seriously went to bat against the Act. And his problems with the Act sounded more in due process (void-for-vagueness), and not in the separation of powers or non-delegation.

The question for the Court was whether SORNA's delegation to the AG to determine the applicability of the Act to pre-Act offenders provided an "intelligible principle" to guide the AG's decision. If so, there's no delegation problem; if not, there's a violation of the Non-Delegation Doctrine. (That Doctrine seeks to preserve the separation of powers by preventing Congress from delegating too much law-making authority to the Executive Branch.)

The Court's approach will likely turn on two considerations. First, can the Court look to the Act in its entirety in determining whether Congress legislated with an "intelligible principle," or is it restricted to the particular provision that delegates authority to the AG to determine its application to pre-Act offenders? (Related: Should the Court seek to interpret the Act to avoid a delegation problem?) Court precedent and most of the Justice who spoke seemed to favor the former approach; only Justice Gorsuch spoke out forcefully in favor of the latter approach (and, again, his objections really sounded in due process, not the separation of powers). Next, does the Non-Delegation Doctrine apply differently to legislation that provides more serious enforcement than to legislation that provides less serious enforcement? In particular, is the Doctrine more rigorous when the delegation goes to the AG (as chief federal prosecutor of federal crimes, as opposed to an ordinary regulatory agency), because a vague delegation would put both the power to interpret the law and the power to prosecute the criminal law in the hands of one executive officer? Again, precedent and questions seemed to say no, and, again, only Justice Gorsuch seriously pushed back.

As far as the separation of powers goes, it's worth noting that if the Court rules that SORNA violates the Non-Delegation Doctrine, this is a net gain for the judicial branch: it means that the courts can play a more aggressive role than they have played in determining the authority of executive agencies in interpreting and executing the law. To that extent, we might consider this case alongside other challenges to the administrative state (challenges to the Chevron doctrine, challenges to Morrison v. Olson and independent agencies, etc.).

It's certainly possible that the Court might do some refining around the edges of the Non-Delegation Doctrine. (Maybe that's why the Court granted cert. Otherwise, the grant seems a mystery.) But it seems quite unlikely that the Court will hold the SORNA's delegation to the AG unconstitutional.

October 3, 2018 in Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0)

Monday, October 1, 2018

Court to Hear Arguments in Nondelegation Doctrine Challenge to Sex Offender Registration Act

The Supreme Court will hear oral arguments tomorrow in Gundy v. United States, the case testing whether Congress violated the separation of powers by delegating too much authority to the Attorney General to determine whether the Sex Offender and Registration and Notification Act applies to pre-Act offenders. Here's my preview for the ABA Preview of United States Supreme Court Cases (with permission):

FACTS

The Sex Offender Registration and Notification Act

In 2006, Congress enacted SORNA to “establish a comprehensive national system for the registration” of sex offenders. Before SORNA, every state had its own registration system, and the federal government required states to adopt certain unifying measures or lose certain federal funds. SORNA strengthened these baselines, but it also did more.

In particular, SORNA created—and required states to create, as a condition of receiving certain federal funds—criminal penalties for individuals who fail to comply with its registration requirements. SORNA created a federal three-tier system for classifying sex offenders based on the significance of their offense, and made it a federal crime to fail to register for a specified number of years (depending on the tier of the crime). (This was different than the classification system that many states previously used, which set requirements based on individualized risk assessments of the offenders.) The Act states that a person who (1) “is required to register under” SORNA; (2) “travels in interstate or foreign commerce”; and (3) “knowingly fails to register or update a registration as required by” SORNA is guilty of a federal crime punishable to up to ten years in prison. 18 U.S.C. § 2250(a). It also requires states (again, as a condition of receiving certain federal funds) to “provide a criminal penalty that includes a maximum term that is greater than 1 year for the failure of a sex offender to comply with” SORNA’s registration requirements.

But Congress didn’t specify whether these new criminal provisions would apply to pre-Act offenders. (The question was important: legislators estimated that there were more than 500,000 pre-Act offenders when Congress passed the law.) Instead, Congress left it to the Attorney General. SORNA says: “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders . . . .” 34 U.S.C. § 20913(d).

This gives the Attorney General quite a bit of discretion. It allows the Attorney General to apply SORNA to pre-Act offenders immediately, or later, or not at all. It also allows the Attorney General to make a decision at one time, but to change course later, or under any new President, with regard to whether and how SORNA’s registration requirements would apply to pre-Act offenders.

In fact, the Attorney General exercised this discretion, at least to some extent. Attorney General Alberto G. Gonzales issued an interim rule about six months after Congress passed SORNA stating that SORNA would apply to pre-Act offenders. Since then, different Attorneys General issued different guidelines as to how it would apply, particularly with regard to offenders who had been released from prison for longer than SORNA’s maximum registration periods (for example, a person who was released more than 25 years before Congress enacted SORNA, but who would be subject to a maximum 25-year registration period under SORNA). As relevant to this case, Attorney General Eric Holder issued guidance in 2010 that SORNA credit pre-Act offenders with their entire prior period in the community, regardless of what a local jurisdiction might decide.

Gundy’s Conviction

In 2005, Herman Avery Gundy pled guilty in Maryland to sexual assault of a minor. He was sentenced to 20 years in prison, with ten years suspended and five years of probation.

In November 2010, Gundy completed his state sentence and was transferred to the custody of the Federal Bureau of Prisons to serve a related federal sentence. The Bureau of Prisons transferred Gundy from Maryland to a prison in Pennsylvania. In July 2012, it transferred him from Pennsylvania to a halfway house in New York to complete his sentence. Gundy was released on August 27, 2012. He remained in New York.

In October 2012, Gundy was arrested in New York and charged with violating SORNA’s federal criminal provision. The indictment alleged that Gundy (1) was “an individual required to register” under SORNA based on his 2005 Maryland sex offense, (2) traveled in interstate commerce, and (3) “thereafter resided in New York without registering” as required by SORNA.

Gundy moved to dismiss the indictment, arguing, among other things, that SORNA could not constitutionally apply to him, because Congress delegated too much authority to the Attorney General to make a fundamentally legislative decision about whether SORNA applied to pre-Act offenders. The district court initially dismissed the indictment, but later, on remand from the Second Circuit, rejected Gundy’s constitutional argument. The Second Circuit affirmed, and remanded the case for trial. Gundy was convicted, and the district court sentenced him to time served and five years of supervised release. Gundy appealed, again arguing that SORNA could not constitutionally apply to him. The Second Circuit again rejected this argument. This appeal followed.

CASE ANALYSIS

In order to protect Congress’s lawmaking authority within our separation-of-powers system—and to ensure that Congress does not cede this authority to the Executive Branch—the Court has set a standard for congressional delegations: it requires Congress to provide “intelligible principles” whenever it delegates authority to enforce the law to agencies within the Executive Branch. This is called the “Nondelegation Doctrine.”

Historically speaking, the Nondelegation Doctrine has been loose and quite permissive, giving Congress wide berth. Thus, the Court has said that a congressional delegation satisfies the Nondelegation Doctrine “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority.” American Power & Light Co. v. SEC, 329 U.S. 90 (1946). To date, the Court has found only two statutory delegations that violated the Doctrine, and both of those provided almost no guidance to the Executive.

Still, Gundy contends that SORNA’s delegation to the Attorney General to determine the Act’s application to pre-Act offenders violates the Doctrine. Gundy argues first that SORNA provides no intelligible principles to the Attorney General, because it doesn’t say “whether he should make any pre-Act offenders register; which offenders should be required to register; or even what he must (or must not) consider in deciding these questions.” He says that even the government concedes that SORNA allows the Attorney General to take no action at all, to wait years before taking action, and to reverse course at any time. Gundy claims this unbridled authority “can only be characterized as ‘legislative’ power[]” in violation of the separation of powers.

Gundy argues next that the Court should apply a heightened nondelegation standard in this context, and that SORNA violates the heightened standard, too. In particular, Gundy claims that SORNA delegates “significant power” to the Attorney General “to make policy decisions that bear directly on an individual’s liberty . . . ; disturb settled expectations of law . . . ; and infringe states’ sovereign interests (by regulating purely intrastate conduct and dictating to states, as a condition of federal funding, how they must regulate and criminalize conduct within their own borders).” Gundy contends that these features of SORNA require a heightened nondelegation standard, and that SORNA fails, because “the statute gives the Attorney General no meaningful guidance as to how to exercise these vast powers.”

The government counters that SORNA satisfies the traditional Nondelegation Doctrine. The government says that the Act identifies the official to whom it delegates authority (the Attorney General), and that SORNA’s text and history sufficiently provide a “general policy” that the Attorney General should pursue in making the determination. The government claims that SORNA thus easily satisfies the deferential traditional nondelegation standard.

To illustrate its point, the government contends that SORNA provides the Attorney General the exact same discretion as a hypothetical (and valid) statute that required all pre-Act offenders to register but authorized the Attorney General to grant waivers. Under this hypothetical (and, again, valid) statute, “the scope of [the Attorney General’s] authority . . . would be the same.” The government says that if Congress can enact this hypothetical statute (which it can), then it can also enact SORNA.

The government argues next that the Court need not address Gundy’s argument about a heightened nondelegation standard. The government contends that SORNA does not raise especial concerns that would justify a heightened standard, that the Court has already rejected a heightened standard, and that SORNA would satisfy any standard, anyway.

SIGNIFICANCE

This case addresses a key question left open the last time the Court took on SORNA, in Reynolds v. United States. 565 U.S. 432 (2012). In that case, the Court ruled that pre-Act offenders do not have to register under SORNA until the Attorney General validly specified that the Act’s registration provisions applied to them. In dissent, Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, noted that SORNA potentially raised a nondelegation problem:

it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.

This case picks up that cue. That’s notable, because the Nondelegation Doctrine has been all but dormant since 1935. In that year, the Court ruled in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), that two different statutes were unconstitutional. Since then, the Court has not ruled a single act of Congress unconstitutional under the Doctrine. This case could resurrect this long-dormant doctrine.

This could be especially significant in the broader context of a Court that seems increasingly skeptical, even hostile, to aggressive agency rule-making—what some describe as impermissible “lawmaking”—within the Executive Branch. This hostility comes out in the increasingly common arguments from some quarters against judicial deference toward agency rule-making under so-called “Chevron deference.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Chevron deference says that the courts should defer to an agency’s interpretation of a statute, so long as the interpretation is reasonable. Opponents of Chevron deference call for greater judicial scrutiny of agency interpretations, in order to rein them in. (As this piece goes to print, Judge Brett Kavanaugh is fielding questions on this precise topic from Senators on the Judiciary Committee.) Arguments against Chevron deference share this feature with arguments against the deferential Nondelegation Doctrine: They both seek to control an Executive bureaucracy that some see as an unaccountable, lawmaking “fourth branch” of government.

Within this context, the Court’s ruling could contribute to a more general move by the Court to rein-in Executive agency actions. Such a move could shift power away from Executive agencies to Congress.

But on that point, it’s important to remember that in our separation-of-powers system there’s a third independent branch of government, the judiciary. And if the Court exercises its prerogative to shift power in this way—by tightening up the Nondelegation Doctrine, by doing away with Chevron deference, or by otherwise reining in agencies’ actions—it looks more like the Court is the branch that gets a boost in power.

October 1, 2018 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Nondelegation Doctrine, Separation of Powers | Permalink | Comments (0)

Friday, September 28, 2018

District Court Says Members of Congress Have Standing to Sue President for Emoluments Violations

Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.

We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.

The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."

The court agreed:

[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.

The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.

September 28, 2018 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Wednesday, September 26, 2018

Senator Merkley Sues to Halt Kavanaugh Confirmation Process

Senator Jeff Merkley today sued President Trump, Senate colleagues, and others in federal court (D.D.C.) to halt the confirmation process of Judge Brett Kavanaugh. Senator Merkley argues that the defendants' actions violate the separation of powers and the Senate's constitutional role in providing advice and consent on Judge Kavanaugh's nomination to the Supreme Court.

The lawsuit relates to the defendants' failure to produce documents, not the more recent sexual assault and misconduct allegations against Judge Kavanaugh. The government will surely file a motion to dismiss based on the political question doctrine (itself a separation-of-powers matter), among others. The outcome of the case (and the confirmation process more generally) will set the standards for document release and Senate advice-and-consent for future judicial nominations, by Republicans and Democrats alike.

Here's the gist:

This case arises from the direct and substantial interference by President Trump and other agents of the executive branch in the ability of the Senate to examine the record and evaluate the fitness of Judge Brett Kavanaugh, the President's nominee for a lifetime appointment as an Associate Justice of the Supreme Court of the United States. President Trump and agents of the executive branch interfered in the ability of Senator Merkley and the Senate to provide advice and consent by, inter alia, imposing a broad and unprecedented blockade on the Senate's and public's access to reams of key documents that directly bear on Judge Kavanaugh's views, experience, and character. This improper process regarding the production of relevant documents prevents Senator Merkley and his colleagues from properly exercising their constitutional obligation to provide advice and consent on the qualifications of the nominee and deprives them of the ability to fully assess the nominee's fitness to assume the position of an Associate Justice of the United States Supreme Court.

***

The President and officers of the executive branch have interfered in the Senate's advice and consent responsibility in three critical ways: encouraging the Senate Majority to not request documents related to Kavanaugh's time while serving as Staff Secretary to George W. Bush; blocking access to an extensive set of documents related to the nominee's views and actions while serving in President George W. Bush's Office of White House Counsel; and blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked "Committee Confidential."

Senator Merkley asks the court to order that

(a) Defendant Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege;

(b) Defendants McConnell, Grassley, Adams, and Stenger not hold or permit a vote on the nominee's confirmation, or otherwise act to advance the confirmation process, until the National Archives releases his records, including the records requested by Senator Grassley regarding the nominee's work at the Office of White House Counsel, and there is sufficient time for the U.S. Senate to review the documents and conduct a careful review of the newly released documents;

(c) National Archives expedite the production of the documents to the earliest date practical;

(d) Defendant Burck cease and desist from usurping the traditional role of the neutral professionals at the National Archives.

September 26, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (3)

Sunday, August 26, 2018

District Court Says Trump EOs Violate Federal Labor Law

Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday in American Federation of Government Employees v. Trump that President Trump's executive orders sharply curtailing federal employees' collective bargaining and labor rights violate federal labor law. The ruling means that most of the EOs' limitations are invalid.

Together, the EOs set a timeframe for completion of collective bargaining negotiations; removed certain matters from the bargaining table completely; set certain procedures for negotiations; limited the extent to which federal employees could engage in union work during business hours; limited the government resources that union members could use for union activities; made it easier for the government to dismiss federal employees for unsatisfactory performance.

The court recognized that the EOs are subject to restrictions in statutory law, but that "the President could always theoretically claim that he possesses the inherent constitutional authority to take a given action, regardless of any conflict with a congressional statute and his resulting lack of statutory authority." "But Defendants have made no such assertion in the instant case; instead, they have 'expressly recognized statutory limitations on the President's authority to act in this area.'" The court, therefore, didn't rule on the constitutional question.

The government's omission of a constitutional argument might seem surprising, given the President's recent constitutional extrapolation from the Court's ruling in Lucia in an EO designed to rein in control over executive branch ALJs. That move seemed like an attack, under cover of Lucia and claimed plenary Article II authority over the executive branch, on civil service laws that in any way restrict the President's claimed authority to hire and fire whomever he wants. That attack would seem to apply equally here. But the government didn't press it.

On the statutory questions, Judge Jackson summarized:

[T]he Order provisions concerning matters such as the reduction of the availability of and support for official time activities [to engage in union-related work], and the specific prohibitions against bargaining over [certain matters], or hte unilateral narrowing of any negotiated grievance procedures, dramatically decrease the scope of the right to bargain collectively, because, in the [Federal Service Labor-Management Relations Act], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every "condition of employment." Likewise, the Orders' requirements, such as the directive that agencies should "ordinarily" seek to conclude collective bargaining negotiations within five to seven months, or should limit the applicability of grievance procedures "[w]henever reasonable[,]" effectively instruct federal agencies and executive departments to approach collective bargaining in a manner that clearly runs counter to the FSLMRS's expectation of good-faith conduct on the part of negotiating parties. . . .

[T]he only challenged provisions of [the EOs] that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.

August 26, 2018 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, August 23, 2018

Check it Out: Former OLCers on Kavanaugh and Presidential Power

Check out these letters to Senators Grassley and Feinstein, here and here, by former attorneys in the Office of Legal Counsel on Judge Kavanaugh's views on presidential authority.

The letters take on a new significance this week, as events draw even more attention to Judge Kavanaugh's views--and how those views might translate if any issue arising out of the Mueller investigation were to reach the Court.

In one letter, former OLCers write on Judge Kavanaugh's critical remarks on United States v. Nixon; in the other, they write on the proliferation of presidential signing statements when Judge Kavanaugh served as staff secretary to President Bush.

From the first (which also captures the gist of the second):

[W]e are troubled by Judge Brett Kavanaugh's apparent commitment to a version of the unitary executive theory of presidential power that holds that the President has total control of actions and decisions of any executive branch official, and that in many cases this control cannot be reviewed by a court of law nor regulated by Acts of Congress.

August 23, 2018 in Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, August 16, 2018

Daily Read: United States Senate Supports Free Press

Senate Resolution 607 , introduced by Senators Brian Schatz and Chuck Schumer, and affirmed unanimously, provides:

Whereas the First Amendment to the Constitution of the United States protects the press from government control and suppression;

340px-The_General_Magazine_and_Historical_Chronicle_Vol_1 _January _1741Whereas the freedom of the press—

(1) has been recognized as integral to the democratic foundations of the United States since the beginning of the United States; and

(2) has endured and been reaffirmed repeatedly throughout the history of the United States;

Whereas Benjamin Franklin in 1722 wrote, ‘‘Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.’’;

Whereas Thomas Jefferson in 1786 wrote, ‘‘Our liberty de- pends on the freedom of the press, and that cannot be limited without being lost.’’;

Whereas James Madison in 1789 introduced the freedom of the press in the Bill of Rights to the Constitution of the United States;

Whereas James Madison based the freedom of the press on the Declaration of Rights of the Commonwealth of Virginia, which in 1776 declared, ‘‘The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.’’;

Whereas President Ronald Reagan proclaimed August 4, 1985, as Freedom of the Press Day, stating that ‘‘Freedom of the press is one of our most important freedoms and also one of our oldest.’’;

Whereas President Reagan also said, ‘‘Today, our tradition of a free press as a vital part of our democracy is as important as ever. The news media are now using modern techniques to bring our citizens information not only on a daily basis but instantaneously as important events occur. This flow of information helps make possible an informed electorate and so contributes to our national system of self-government.’’;

Whereas Justice Anthony Kennedy wrote in International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), ‘‘The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.’’;

Whereas the United States Supreme Court also affirmed the history and intent of the freedom of the press in New York Times Co. v. United States, 403 U.S. 713 (1971), stating, ‘‘In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.’’;

Whereas tyrannical and authoritarian governments and leaders throughout history have sought to undermine, censor, suppress, and control the press to advance their undemocratic goals and actions; and

Whereas the United States, including the long-held commitment to and constitutional protection of the free press in the United States, has stood as a shining example of democracy, self-government, and freedom for the world to emulate: Now, therefore, be it

Resolved, That—

(1) the Senate—

(A) affirms that the press is not the enemy of the people;

(B) reaffirms the vital and indispensable role that the free press serves to inform the electorate, uncover the truth, act as a check on the inherent power of the government, further national discourse and debate, and otherwise advance the most basic and cherished democratic norms and freedoms of the United States; and

(C) condemns the attacks on the institution of the free press and views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States; and

(2) it is the sense of the Senate that it is the sworn responsibility of all who serve the United States by taking the oath to support and defend the Constitution of the United States to uphold, cherish, and protect the entire Constitution, including the freedom of the press.

This Resolution can be seen as a rebuke to presidential statements describing the press as an "enemy of the people." 

 

Additionally, about 350 media outlets have also published pieces today affirming the importance of a free press and rejecting the "enemy of the people" appellation.

August 16, 2018 in Current Affairs, Executive Authority, First Amendment | Permalink | Comments (0)

Tuesday, August 14, 2018

President Issues Sweeping Signing Statement on Defense Authorization Act

President Trump late yesterday issued a breathtaking constitutional signing statement on the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The President called out dozens of provisions for impinging on the commander-in-chief authority, the foreign affairs authority, the appointments authority, executive privilege, and the President's authority to recommend legislation.

Perhaps most alarming, the President identified 18 separate sections that require public disclosure or reports to Congress on various topics as categorically "protected by executive privilege."

My Administration will treat these provisions consistent with the President's constitutional authority to withhold information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President's constitutional duties.

The move pits the President's inherent Article II powers against Congress's powers to appropriate funds, its war powers and powers over the military, its foreign-relations powers, and its oversight authority (to say nothing of any interest or right that the people have in knowing what their government is up to). But unless Congress is willing to push back (for example, by issuing and enforcing subpoenas for reports required by the Act, but over which the President has claimed a categorical "executive privilege"), or unless a person or group has standing to challenge any of the President's rejection of funding restrictions or requirements or appointments matters, these claims will never see the inside of a courtroom.

If not, then the President will have effectively line-item vetoed a whopping 50 or more provisions of a single Act of Congress, with no check.

August 14, 2018 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Ninth Circuit: Complaint Challenging Destruction of Photographs at Border Can Proceed

In its opinion in Askins v. United States Department of Homeland Security, a panel of the Ninth Circuit vacated a district judge's dismissal of a complaint alleging the confiscation and destruction of photographs by United States Customs and Border Protection (CBP) violated the First Amendment

One issue on appeal was whether the district judge incorrectly applied the "law of the case" doctrine to the amended complaint. The Ninth Circuit held the trial judge was wrong and should have evaluated the amended complaint on its own merits.

The First Amendment issue was whether the complaint stated a claim that the CBP's policies prohibiting photography even in public places was a First Amendment violation. Writing for the court, Judge Jay Bybee noted that the trial judge assumed that the areas adjacent to the ports of entry at these specific southern borders — Calexico West and San Ysidiro — were public fora and the CBP's restrictions were content based. The trial judge found that the CBP policies survived strict scrutiny because of the compelling interest of border security and in a "conclusory fashion" determined that the policies were the least restrictive means of serving the interests. The Ninth Circuit's opinion disagreed:

These conclusions are too thin to justify judgment for the government on a motion to dismiss. * * * * Without question, protecting our territorial integrity is a compelling interest that could justify reasonable restrictions on speech activities at ports of entry. * * * * But the devil lies in the details: “Even at the border, we have rejected an ‘anything goes’ approach.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc). It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.

Large_format_camera_lensThe Ninth Circuit did, however, stress that it was not deciding that the places at issue were in fact public fora. This should be a fact-based analysis.  Yet the court in a footnote also noted that it was unclear why the CBP applied its guidelines for the press to these plaintiffs:

We are puzzled as to how these guidelines apply to members of the public, whether media or not, who take photographs outside of port of entry facilities from streets and sidewalks accessible to the general public, whether those streets and sidewalks are on or off the port of entry. On their face, the policies would not appear to apply to plaintiffs at all, much less sanction the detention of plaintiffs and the destruction of their photographs under the circumstances alleged.

As the case returns to the district judge, questions of specific geography regarding public places near border entries is sure to figure prominently.

 

August 14, 2018 in Executive Authority, First Amendment, Opinion Analysis | Permalink | Comments (0)

Monday, August 13, 2018

Judge Rebuffs Challenge to Special Counsel in Russian Interference Case

Judge Dabney L. Friedrich (D.D.C.) today rejected challenges to Special Counsel Robert Mueller's office and authority by a defendant in the criminal case against thirteen Russian individuals and three corporations. The ruling in U.S. v. Concord Management says that the special counsel office is constitutional and that Special Counsel Mueller was acting within his authority in bringing this case. The ruling allows the case to go on.

We posted on another rejection to the special counsel just 11 days ago, here.

The court first ruled that the special counsel is an "inferior" office under the Appointments Clause and was validly appointed by the Acting AG. The court said that different features of the office pointed in both the "principal officer" and "inferior officer" direction under Edmond, but ultimately the revocability of DOJ's special counsel regulations mean that the office is "inferior":

The regulations' revocability is "[t]he crucial difference" between the Special Counsel regulations and a statute that seeks to bind the executive branch from without, and it is this different that ensures the Special Counsel is an inferior officer. That is, to the extent that the regulations threaten to impair the Acting Attorney General's ability to direct and supervise the Special Counsel, the Department of Justice may simply rescind or revise the regulations at any time. This ability to rescind or revise the regulations as needed means that the Special Counsel is subject to the Acting Attorney General's plenary supervision. It also makes the Special Counsel effectively removable at will: if the for-cause provision stands in the way, the Acting Attorney General need only rescind or revise the regulation in order to remove the Special Counsel.

The court also ruled that the special counsel was an "inferior office" under Morrison v. Olson.

The court went on to say that the office didn't violate the separation of powers. In particular, the court ruled that even if the special counsel regulations are nonbinding on the special counsel (as Concord argued), then "the Special Counsel would be subject to the Acting Attorney General's plenary control by statute. Because executive power would remain wholly within the executive branch, no separation-of-powers problem would arise." Moreover, the court said that the AG had plenty of statutory authority to issue the special counsel regs.

Finally, the court said that Special Counsel Mueller wasn't acting outside of his appointment authority in bringing this particular case.

August 13, 2018 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, August 9, 2018

Federal Judge Orders Return of Mother and Daughter Being Deported

In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order  "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original).  Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:

it is

HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is

FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is

FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.

SO ORDERED.

[emphasis in original].

The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.

August 9, 2018 in Courts and Judging, Current Affairs, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, Procedural Due Process | Permalink | Comments (0)