Saturday, October 12, 2019

Court Strikes President's Reprogramming Federal Funds for Border Wall

Judge David Briones (W.D. Texas) ruled on Friday that President Trump's effort to reprogram federal funds in the name of a "national emergency" to build a border wall exceeded his authority under the Consolidated Appropriations Act of 2019. The ruling further invites the plaintiffs to file for a preliminary injunction to halt the reprogramming.

The ruling deals a substantial blow to President Trump in his effort to shift around money to pay for his border wall. Still, this isn't the end of this case: it'll surely be appealed.

We last posted on these issues here.

The case arose when El Paso County and Border Network for Human Rights sued President Trump to halt reprogramming under his national emergency declaration. Upon declaring the emergency, President Trump ordered the relevant secretaries to reprogram $2.5 billion of Defense Department funds appropriated for Support for Counterdrug Activities under 10 U.S.C. Sec. 284, and $3.6 billion of DOD funds appropriated for "military construction projects" under 10 U.S.C. Sec. 2808. The plaintiffs argued, among other things, that the order violated the 2019 CAA. The court agreed.

The court first ruled that the plaintiffs had standing. It wrote that El Paso was the target location for the new wall, that it suffered a reputational injury (in President Trump's statements about how dangerous it is), and that it suffered economic harm--all because of President Trump's order, and which would be redressed by a favorable ruling. It held that BNHR had standing, too, because it spent significant resources to respond to President Trump's actions that would have gone to support its regular activities. The court ruled that the plaintiffs had standing to sue under Section 2808, because the government took steps to fund the construction of a wall.

As to the CAA, the court held that the reprogramming violates the plain terms of the CAA:

the CAA specifically appropriates $1.375 billion for border-wall expenditures and requires those expenditures to be made on "construction . . . in the Rio Grande Valley Sector" alone. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes--military construction, under Section 2808, and counterdrug activities, under Section 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA.

In addition, the court said that the proclamation violates Section 739 of the CAA, which provides

None of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.

The court explained: "Section 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception," because neither Section 2808 nor Section 284 is an appropriations act.

Although the ruling grants summary judgment to the plaintiffs on these issues, it does not grant a preliminary injunction. "Defendants have countered that Plaintiffs cannot obtain equitable relief against the President. The Court has requested additional briefing on this issue and will reserve judgment in this regard for a later date."

In light of the Supreme Court's ruling this summer staying a permanent injunction because the government showed that the plaintiffs had no cause of action to challenge a Section 8005 transfer, the ruling says nothing about the government's Section 8005 authority to reprogram funds for Section 284 counterdrug activities. It also says nothing about reprogramming Treasury Forfeiture Funds.

October 12, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Friday, October 11, 2019

D.C. Circuit Says House Can Subpoena Mazars for Trump Financial Records

The D.C. Circuit ruled today that the House Committee on Oversight and Reform acted within its powers, and not in violation of the Constitution, when it issued a subpoena to Mazars USA, LLP, for records related to work performed by President Trump and his business entities both before and after he took office.

The ruling deals a sharp blow to President Trump and his efforts to shield his financial records. But the D.C. Circuit probably won't have the last say: this seems destined for the Supreme Court.

We previously posted on the case here and on a related case here.

The case arose when the Committee subpoenaed Mazars for the records. President Trump sued to stop Mazars from releasing them, and the Justice Department filed an amicus brief on the side of the President.

The court flatly rejected the President's novel claims that the subpoena exceeded the Committee's authority and violated the Constitution. In particular, the court held that the subpoena was not an invalid exercise of law-enforcement (as opposed to legislative) power, because the Committee's explanation for the subpoena on its face stated a valid legislative purpose--to inform "multiple laws and legislative proposals under [the Committee's] jurisdiction." Moreover, the court noted that the House actually has pending legislation related to the subpoena, thus underscoring the legislative character of the subpoena, even though this isn't required.

The court held next that the subpoena has a valid legislative purpose. The court wrote that the subpoena could serve ethics and financial disclosure laws that apply to the President.

The court wrote that the subpoena's reach--seeking information before the President was elected and before he even announced his candidacy--fell within Congress's legislative power, because it could consider legislation requiring a President to disclose financial information going back before a President takes office.

Judge Rao dissented. She argued that the subpoena serves only the Committee's interest in determining "whether the President broke the law"; that the Committee can only take up this kind of law-enforcement function in the context of an impeachment; and that because the subpoena was issued outside of an impeachment proceeding, it is therefore invalid:

The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress's impeachment power to support this subpoena. When Congress seeks information about the President's wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress's legislative power. Throughout history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.

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

Wednesday, October 9, 2019

Daily Read: The Contempt Power of Congress

The practice and the announcement of the White House that it will not cooperate with the House of Representatives Impeachment Inquiry as we discussed here, raises the question of the resources available to Congress to enforce its subpoenas.  And as in so many cases about Congressional matters, there is a Congressional Research Service Report for that: Congressional Subpoenas: Enforcing Executive Branch Compliance, updated March 27, 2019.  

The Report includes this overview:

Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any later prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands.

Congress has only rarely resorted to either criminal contempt or civil enforcement to combat non- compliance with subpoenas . . . . 

[footnotes omitted].

Of special note later in the Report is a discussion of "detention" of executive branch officials:

Although rare, the inherent contempt power has been used to detain executive branch officials, including for non-compliance with a congressional subpoena. During an 1879 investigation into allegations of maladministration by George F. Seward while a consul general in Shanghai, a House committee issued a subpoena to Seward for relevant documents and testimony.254 When Seward—then an ambassador to China—refused to comply, the House passed a resolution holding him in contempt and directing the Sergeant-at-Arms to take him into custody and bring him before the House. Seward was taken into custody and brought before the House, where he was ultimately released while the House considered impeachment articles.

In another example which gave rise to Marshall v. Gordon [1917], the House adopted a contempt resolution directing the Sergeant-at-Arms to arrest U.S. Attorney Snowden Marshall for an insulting letter sent to a committee chair. The arrest was then made and quickly challenged in federal court, where ultimately the Supreme Court ordered Marshall released. In doing so, the Court reaffirmed the contempt power generally, but concluded that in Marshall’s case the contempt was invalid as “not intrinsic to the right of the House to preserve the means of discharging its legislative duties.” Notably, the Court was silent on whether Marshall’s status as an executive branch official had any impact on the House’s exercise of the power.

Given these examples, and the Supreme Court’s general statements on the reach of the inherent contempt power, it would appear to be within Congress’s power to use inherent contempt to compel executive branch compliance with congressional subpoenas, at least in certain circumstances. But neither the Seward nor Marshall example involved an assertion of executive privilege, meaning that the Court did not need to consider what, if any, constraints that privilege may impose upon Congress’s exercise of its inherent contempt authority.

Moreover, an attempt by Congress to arrest or detain an executive official may carry other risks. There would appear to be a possibility that, if the Sergeant-at-Arms attempted to arrest an executive official, a standoff might occur with executive branch law enforcement tasked with protecting that official. This concern is also applicable in the event that a judicial marshal enforces a judicial order of contempt against an executive official, and perhaps will always be “attendant in high-stakes separation-of-powers controversies.”

[footnotes omitted].

There's a great deal more worth reading in this 45 page Report as what some are calling a "constitutional crisis" unfolds.

CRS Contempt

October 9, 2019 in Congressional Authority, Current Affairs, Executive Authority, Executive Privilege, Political Question Doctrine | Permalink | Comments (0)

Tuesday, October 8, 2019

White House Blasts Impeachment Inquiry, Says it Won't Cooperate

White House Counsel Pat Cipollone sent a scathing letter today to House leadership blasting the impeachment inquiry and stating that the White House won't cooperate. Given White House intransigence so far, it's not clear that the letter will really change anything on the ground.

Cipollone cited two flaws: the process lacks due process protections, and the House has no "legitimate basis" for the inquiry.

As to due process, Cipollone claims that an impeachment inquiry requires due process, and that the House process falls short:

To comply with the Constitution's demands, appropriate procedures would include--at a minimum--the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry. The Committees' current procedures provide none of these basic constitutional rights.

Cipollone also complained that the committees' ranking members lack subpoena power, and that "the Committees have also resorted to threats and intimidation against potential Executive Branch witnesses."

The impeachment process, of course, is a nonjusticiable political question under Nixon v. United States. So we don't have the Supreme Court's say-so as to what, if any, measures of due process are required. In the case that Cipollone cites as support for his claim that impeachment requires due process, Judge Hasting's impeachment, Hastings raised similar due process complaints about his trial in the Senate. But in a ruling not cited by Cipollone, the district court ultimately dismissed Hasting's complaint as raising a nonjusticiable political question under Nixon, and therefore did not touch on any process that might be due in an impeachment.

Cipollone's claims don't come in the context of a court case, though, so the political question doctrine doesn't foreclose them. Instead, they may cleverly put House Democrats in an awkward spot. The only practical way that House Democrats can get White House cooperation is to go to court; but if they seek to enforce a subpoena issued in an impeachment inquiry in court, the White House will surely claim that the case is a nonjusticiable political question under Nixon. Regardless of merits of that claim, unless the House can get the courts to enforce their subpoenas, the House will have to base its articles of impeachment only on evidence that it can obtain independent of White House cooperation, and, of course, obstruction. This may make it even more likely (if that's possible) that the House will impeach, but it also may make it even less likely (if that's possible) that the Senate will convict.

As to the lack of a "legitimate basis" for the inquiry, Cipollone argues that President Trump's call to President Zelenskyy "was completely appropriate," that "the President did nothing wrong," and therefore that "there is no basis for an impeachment inquiry." This echoes the familiar (and tenuous) constitutional claim that we've heard from the White House in nearly every congressional investigation--that the House lacks a "legitimate legislative purpose." It also begs the question: the whole purpose of an impeachment inquiry, it seems, is to get more evidence to discover whether there's a basis for going forward with impeachment. The House needs information from the executive branch to help it make that determination.

Cipollone's letter is a stunning rebuke. But in the end, it's not clear that it's much of a game-changer, only because the White House hasn't much cooperated so far, anyway.

October 8, 2019 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Monday, October 7, 2019

District Court Tosses Trump Suit to Protect Taxes

Judge Victor Marrero (S.D.N.Y.) today dismissed President Trump's lawsuit that sought to halt a state grand jury subpoena issued to Mazars USA for Trump organization financial documents, including the President's tax returns. We posted most recently here.

The ruling deals a blow to President Trump's efforts to protect his tax returns from disclosure, and to halt any state criminal process against him. But it may be temporary: the Second Circuit immediately stayed the ruling pending expedited review; and whatever the Second Circuit says, this case seems destined for the Supreme Court.

The district court ruled that President Trump's suit was barred by Younger abstention, and that his constitutional claim likely failed on the merits.

As to Younger abstention, which requires federal courts to abstain from intervening in pending state court proceedings under certain circumstances, the court said that the grand jury subpoena was part of a pending state criminal proceeding (despite a circuit split on the question), that the state proceeding implicates important state interests, and that the state proceeding affords President Trump plenty of opportunities to raise his constitutional claims. The court rejected the President's claims that the state process was in bad faith or merely designed to harass him, and that the case raised extraordinary circumstances.

As to the underlying merits, which the court addressed "so as to obviate a remand" on President Trump's motion for a preliminary injunction if the Second Circuit overrules the abstention holding, the court flatly rejected the President's claim of absolute presidential immunity from all state criminal processes. The court said that it "cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law, or even the DOJ Memos on which the President relies most heavily for support." The court, citing Clinton v. Jones, said that the Supreme Court would likely reject the President's absolute, categorical approach to immunity in favor of a functional approach that "take[s] account of various circumstances concerning the appropriateness of a claim of presidential immunity from judicial process relating to a criminal proceeding" and to balance the competing interests in working out the immunity question.

The case now goes to the Second Circuit on an expedited basis. Again: the Second Circuit stayed the district court's ruling, which means that President Trump's federal case challenging the state subpoena is still alive. Whatever happens at the Second Circuit, this case will almost surely go to the Supreme Court.

October 7, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Friday, September 27, 2019

Does Congress Have More Investigation Power in Impeachment Proceedings?

Three House committees together issued the first subpoena under the House's impeachment inquiry, notably citing the impeachment power (and not oversight power) as authority for the subpoena.

The subpoena is significant because the committees twice previously requested the exact same information citing the commitees' oversight authority. The administration ignored those requests. The new impeachment subpoena takes away the administration's arguments for stonewalling congressional inquiries under its oversight authority and may test whether Congress has more power when it engages in an impeachment than when it engages in regular oversight.

The subpoena, issued by the chairs of the House Foreign Affairs, Permanent Select Committee on Intelligence, and Oversight and Reform, is directed at Secretary of State Mike Pompeo. It seeks information related to President Trump's efforts to urge Ukraine to interfere with the 2020 election.

The subpoena letter begins, "Pursuant to the House of Representatives' impeachment inquiry . . . ."

The committee twice before asked for the same information, but citing only their oversight authority. Those requests are here and here.

The administration has now made a habit of ignoring congressional oversight requests, arguing that they (1) lack a legitimate legislative purpose, (2) violate its new and sweeping version of executive privilege, and (3) constitute law enforcement (not lawmaking) in violation of the separation of powers.

But by invoking the House's impeachment authority, the committee undermine those arguments (to the extent that they had any force in the first place). In an impeachment, there is no legislative purpose. Impeachment, as a significant constitutional check on the President, weighs stronger against a President's claim of executive privilege. And Congress is engaged in an impeachment inquiry, not law enforcement.

The administration will undoubtedly come up with constitutional arguments to ignore this latest subpoena, too. But the impeachment power seems to take away these three.

So: Does Congress have more authority when seeking information under its impeachment power? We don't know for sure. But Molly Reynolds and Margaret Taylor survey the arguments in this May 2019 piece over at Lawfare.

September 27, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Wednesday, September 25, 2019

Impeachment Explained

With the news that the House of Representatives has launched an impeachment inquiry, many of us could use some explainers or refreshers on the rarely-used constitutional process of impeachment.

First, the Constitutional text. The United States Constitution provides for impeachment and removal of office for the President and other Executive officers in Article II §4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Constitution divides the power to impeach and the power to adjudicate impeachment between the chambers of Congress, with the House of Representatives having the power to impeach and the Senate having the power to adjudicate the impeachment and effect removal from office.

Article I §2 provides:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I §3 provides:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The Constitution does not further detail the processes, but there is the precedent of previous impeachment processes, including those against Presidents Andrew Johnson, Richard Nixon, and William Clinton which were resolved at various stages and none of which led to conviction and removal. There is also the more frequent experience with judicial impeachments.

The Congressional Research Service has two excellent explainers on impeachment. First and of immediate interest is the report entitled The Impeachment Process in the House of Representatives.  It was updated August 2019, and although it is only 15 pages, it is an excellent and substantive discussion of the process and requirements.  A somewhat longer report from 2015 entitled Impeachment and Removal provides an overview including grounds for impeachment and trial in the Senate. As this report also notes, the question of impeachment has been held to be a nonjusticiable political question by the United States Supreme Court in Nixon v. United States, 506 U.S. 224 (1993), a case involving the impeachment of federal Judge Walter Nixon (not President Nixon, who resigned in 1974).

There have also been several good explainers in the media; here are a few:

Jennifer Haberkorn, Impeachment 101: How could Congress remove President Trump from office?, Los Angeles Times (May 30, 2019);

Ed Kilgore, The Impeachment Process Explained: What Happens to Trump Now?, New York Magazine (September 25, 2019);

Amber Phillips, What you need to know about the impeachment inquiry into Trump, Washington Post (September 25, 2019);

Charlie Savage, How the Impeachment Process Works, New York Times (September 24, 2019).

Screen Shot 2019-09-25 at 11.20.45 AM

 

September 25, 2019 in Congressional Authority, Current Affairs, Executive Authority, Executive Privilege, News | Permalink | Comments (0)

Tuesday, September 24, 2019

New York DA Pushes Back Against Trump's Claim of Absolute Immunity

New York DA Cyrus Vance, Jr., yesterday filed a motion to dismiss President Trump's federal lawsuit that seeks to shut down the state grand jury proceeding.

Recall that the state grand jury issued a subpoena to Mazurs USA for financial and tax records of a number of New York entities and individuals, including President Trump. President Trump then sued in federal court to halt the state process, arguing that he is absolutely immune from any criminal process. (His argument wasn't limited to just state criminal process or any criminal prosecution; instead, he argued that he is absolutely immune from any criminal process.)

Vance argues that 28 U.S.C. sec. 2283 and Younger abstention compel the federal court to dismiss the case. Section 2283 provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Similarly, Younger abstention requires a federal court to abstain from interfering in certain state-court proceedings.

Vance argues that the federal court should abstain from ruling on President Trump's constitutional claims until the state courts have a chance to do so. He says that there's no "special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate" that would justify an exception to the general abstention principle.

Moreover, Vance argues that President Trump failed to show irreparable harm and is wrong on the merits. As to harm, Vance says that subpoenaed records would be destroyed if the courts later rule the Mazurs subpoena invalid, and that the President's claims that he'd be distracted by the state criminal process is belied by the President's handling of other criminal processes. As to the merits--the President's sweeping claim of absolute immunity from any criminal process--Vance writes, "As the President's own papers make plain, no authority exists to support such a sweeping claim of immunity, which makes a showing of likelihood of success on the merits impossible."

September 24, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Federalism, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0)

Monday, September 23, 2019

New York Judge Orders Trump to Testify in Protest Tort Case

In her Order in Galicia v. Trump, Judge Doris Gonzalez has ordered that President Trump appear for a videotaped deposition prior to trial to provide testimony for use at trial in this tort case. 

The plaintiffs brought an action against Donald Trump,  Donald Trump for President, the Trump Organization, and Keith Schiller for events in September 2015 when plaintiffs were protesting Trump's views as he was beginning his campaign for President. Plaintiffs allege  that "several of Defendant Trump's bodyguards, including his confidant and chief security officer Keith Schiller, stormed Plaintiffs, pushed some of them down the sidewalk, using excessive force grabbed the signs from Plaintiffs and converted them to their own use." The case is proceeding to trial on claims of assault and battery, and against Donald Trump on a theory of respondeat superior.  In 2016, a state judge  granted a protective order against a motion to compel Trump's deposition before trial. When the case became ready for trial, plaintiffs issued a subpoena ad testificandum to compel Trump's testimony; Trump moved to quash, arguing that under Clinton v. Jones (1997), a president can only be deposed before trial and at the White House.

Judge Gonzalez began her discussion with a resort to the framers and Marbury v. Madison:

More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated, [t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to be deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137 (1803). Put more plainly, no government official, including the Executive, is above the law.

Yet as Judge Gonzalez notes, the Court resolved the question of whether the President is absolved from legal responsibility for unofficial conduct in Clinton v. Jones. Further, the New York courts resolved the issue of whether the state courts could exercise jurisdiction over the President in Zervos v. Trump. 

However, President Trump argued that his testimony could not be compelled for trial, but only at pretrial as some dicta in Clinton v. Jones indicated, and that in any event, the plaintiffs had waived the President's testimony by not appealing the earlier order finding a motion to compel premature. Further, Judge Gonzalez distinguished a Second Circuit case relied upon by Trump that depositions of "high-ranking officials" should only occur in exceptional circumstances by noting that this was the rule in litigation involving official action rather than the unofficial pre-Presidential action at issue in this case.

Judge Gonzalez ruled that "questions of fact exist" regarding Trump's "exercise of dominion and control over his employee defendants" and ordered President Trump to "appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."

Donald_Trump_swearing_in_ceremony

 

September 23, 2019 in Courts and Judging, Current Affairs, Executive Authority, Executive Privilege, Federalism, Opinion Analysis | Permalink | Comments (0)

Friday, September 20, 2019

President Argues for Absolute Immunity from All Criminal Process

President Trump filed suit yesterday to halt the Manhattan D.A.'s criminal investigation into the President's hush-money payments in the run-up to the 2016 election. The President argues that he's absolutely immune from any criminal process, including criminal investigation.

Here's why (quoting the 1973 OLC memo):

"To wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs." The President thus cannot be subject to criminal process, for any conduct of any kind, while he is serving as President.

The President also makes a federalism claim--that it would violate federal supremacy to permit the Manhattan D.A. to saddle the President with a criminal investigation.

The President's argument extends the view of the OLC that the President is immune to criminal prosecution while in office. (Here's the 1973 OLC memo drawing that conclusion; here's the 2000 OLC memo, same.) At the same time, it leaves open the possibility that a President could be subject to criminal investigation (and prosecution) after leaving office. (For that reason, it argues that it's not claiming that "the President is above the law.)

September 20, 2019 in Cases and Case Materials, Executive Authority, Federalism, News, Separation of Powers | Permalink | Comments (0)

Thursday, September 19, 2019

Trump Administration Urges Court to Strike CFPB Independence

The Trump Administration urged the Court this week to take up a case that challenges the political independence of the head of the Consumer Financial Protection Bureau. If the Court takes the case, it would likely deal one more significant blow to agency independence--or to abolish agency independence altogether.

Congress created the CFPB as part of the Dodd-Frank Act to regulate consumer financial products and services. Under the Act, the head of the CFPB is appointed by the President, with Senate confirmation, for a five-year term and removable by the President only for "inefficiency, neglect of duty, or malfeasance in office." The removal provision is designed to ensure that the CFPB head isn't subject to the political whims of the White House.

In a brief in support of Court review this week, the administration argues that it violates the separation of powers. In particular, the administration claims that the termination provision encroaches too far into the President's authority to supervise the executive branch. It distinguishes Humphrey's Executor by arguing that, unlike the CFPB, the independent agency in that case, the FTC, involved a multi-member board with staggered appointment terms, and with quasi-legislative and quasi-judicial authority. It distinguishes Morrison v. Olson by arguing that, unlike the head of the CFPB, the independent office in that case, the Independent Counsel, was an inferior officer. By distinguishing these cases, the administration tries to thread the needle and strike CFPB independence while keeping multi-member agency and inferior officer independence on the books.

But if the Court can't see its way to navigate these waters, the administration has another suggestion: overrule Humphrey's Executor and Morrison v. Olson. Footnote 2 of the brief reads:

If this Court were to conclude that Humphrey's Executor or Morrison requires upholding the removal restriction, it should consider whether those cases should be overruled in part or in whole. That issue is fairly encompassed in the question presented.

If so, the whole idea of agency independence could go away.

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

Wednesday, September 4, 2019

Federal District Judge Issues Preliminary Injunction to Restore Press Pass

In a well-considered opinion in Karem v. Trump, United States District Judge for the District of Columbia, Rudolph Contreras, issued a preliminary injunction requiring the defendants President Trump and White House Press Secretary Stephanie Grisham to restore the "hard pass" press credential to plaintiff Brian Karem.

As Judge Contreras explained, the "hard pass" is a long term press pass that the White House has made available for "decades and across many presidential administrations" to "any Washington-based journalist who regularly covers the President and can clear a Secret Service background check." In 1977, the DC Circuit Court of Appeals held that reporters have a First Amendment liberty interest in possessing a long-term so-called “hard pass”—an interest that, under the Fifth Amendment, may not be deprived without due process, Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).

The defendants admitted that the revocation of Karem's hard pass was punitive. The revocation of Karem's hard pass came three weeks after an incident in the Rose Garden which Judge Contreras describes in detail, noting that the incident was captured on video and shared widely on the internet.

 

Judge Contreras noted repeatedly that the court did not reach Karem's First Amendment challenge, but resolved the issue on Fifth Amendment Due Process Clause grounds. One aspect of the due process challenge was procedural due process, as in Sherrill v. Knight, which the court found applicable despite the defendants' argument that Sherrill should be limited to its precise facts, situations in which the Secret Service denied a hard pass application for security reasons. Another aspect of the due process challenge was vagueness, which surfaces in Sherrill but is more directly addressed by the United States Supreme Court's opinion in FCC v. Fox (2012), in which the Court found that the FCC fleeting expletives and nudity regulations were unconstitutional.

Here, Judge Contreras found that the White House guidelines were not constitutionally adequate, even when considering the so-called "Acosta Letter" issued by the White House to the press corps in November 2018, although Grisham did not reference or seemingly rely on that letter when issuing her revocation of Karem's hard pass. 

On the balance of equities and public interest regarding the preliminary injunction, Judge Contreras noted the three week lag from the event to the discipline and also stated:

The Court understands the White House’s desire to maintain a degree of control over access and decorum, and at first glance, some might think the temporary suspension of a single reporter’s press pass to be a relatively modest exercise of such control. But as Sherrill makes clear, the conferral of White House hard passes is no mere triviality. And the need for regulatory guidance is at its highest where constitutional rights are implicated.

The White House could react by appealing to the DC Circuit — or by attempting to issue regulatory guidance that might or might not apply to Karem's actions.

 

September 4, 2019 in Current Affairs, Due Process (Substantive), Executive Authority, Fifth Amendment, First Amendment, Procedural Due Process | Permalink | Comments (0)

Monday, July 29, 2019

District Court--Yet Again--Rejects Fed's Approval of State Medicaid Work Requirement

Judge James S. Boasberg (D.D.C.) ruled today that the Secretary of Health and Human Services violated the Administrative Procedure Act in approving a state's proposed work requirements for its Medicaid recipients.

The ruling in Philbrick v. Azar comes just months after the court struck HHS's approvals for Arkansas's and Kentucky's proposed work requirements.Those rulings are now on appeal to the D.C. Circuit.

The government didn't change its position or arguments from the earlier cases, suggesting that it's banking on higher courts to rule in its favor and uphold the approvals.

Judge Boasberg ruled here, as in the earlier cases, that HHS didn't sufficiently consider the purpose of the Medicaid program--to provide health care for the financially needy--in granting the approvals for work requirements. The court noted that the requirements mean that Medicaid beneficiaries lose benefits, not gain them, in direct contradiction to the purpose of the program.

Here's the court's summary:

Plaintiffs argue that the Secretary's approval of New Hampshire's plan suffers from the same deficiency [as the Arkansas and Kentucky plans] and thus must meet the same fate. The Court concurs. On their face, these work requirements are more exacting than Kentucky's and Arkansas's, mandating 100 monthly hours--as opposed to 80--of employment or other qualifying activities. They also encompass a larger age range than in Arkansas, which applied the requirements only to persons 19 to 49. Yet the agency has still not contended with the possibility that the project would cause a substantial number of persons to lose their health-care coverage. That omission is particularly startling in light of information before the Secretary about the initial effects of Arkansas's markedly similar project--namely, that more than 80% of persons subject to the requirements had reported no compliance for the initial months, and nearly 16,900 people had lost coverage. The agency's rejoinders--that the requirements advance other asserted purposes of Medicaid, such as the health and financial independence of beneficiaries and the fiscal sustainability of the safety net--are identical to those this Court rejected with respect to HHS's 2018 approval of Kentucky's program.

The government will surely appeal this ruling, too, and try to get the D.C. Circuit or, ultimately, the Supreme Court to bite at its arguments.

July 29, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, July 27, 2019

High Court Allows Border Wall Reprogramming Funding, Construction to Move Forward

The Supreme Court late Friday granted the administration's motion for a stay of the district court's permanent injunction, affirmed by the Ninth Circuit, prohibiting the administration from reprogramming funds to build a border wall. The ruling is a significant victory for President Trump. It means that the administration can go ahead with its plans to reprogram funds and build portions of the wall.

This ruling doesn't end the case. But it strongly suggests that any further ruling from the Court will also favor the administration.

The case, Trump v. Sierra Club, involves the Sierra Club's challenge to the administration's reprogramming of $2.5 billion from military accounts to build a border wall. The administration moved to reprogram funds after Congress granted the administration only $1.375 billion (of the $5.7 billion requested by the administration), and restricted construction to eastern Texas, for border wall construction. As relevant here, the administration announced that it would transfer $2.5 billion from Defense Department accounts to the Department of Homeland Security. In order to get the money in the right account, DoD had to transfer funds under Section 8005 of the DoD Appropriations Act of 2019. That section authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)," so long as the Secretary determines that "such action is necessary in the national interest." The funds can be used "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress." 

The Sierra Club sued, arguing that the transfer violated the law, because wall funding wasn't "unforeseen" and because Congress had previously denied requested wall funding. The district court entered a permanent injunction, and the Ninth Circuit affirmed. The government filed an application for a stay with the Supreme Court.

A sharply, and ideologically, divided Court granted the stay. The Court (the majority comprised of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh) gave only this explanation in its short opinion: "Among 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." This probably refers to the government's argument that the Sierra Club wasn't within the "zone of interests" protected by Section 8005, and therefore wasn't a proper party to bring the case. It may also refer to the government's argument that the district court and the Ninth Circuit misread the "unforeseen" and "has been denied by the Congress" language in Section 8005. (The government offered a much narrower interpretation of those phrases than the lower courts adopted.)

The Court left the door open for Supreme Court review on a regular writ of certiorari. But given the ruling and alignment in its order granting the stay, it seems unlikely that the Court will rule against the administration.

Justices Ginsburg, Sotomayor, and Kagan wrote (without explanation) that they would have denied the stay. Justice Breyer offered a middle ground: allow the administration to move forward with the contracts it needs to build under its strict timeline, but not allow it to actually begin construction until we get a final say-so from the Court.

July 27, 2019 in Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, July 10, 2019

Fourth Circuit Tosses D.C., Maryland Emoluments Suit Against Trump for Lack of Standing

The Fourth Circuit ruled that Maryland and D.C. lacked standing to pursue their case against President Trump that he's violating the Foreign and Domestic Emoluments Clauses. The decision reverses a district court ruling and dismisses the case.

We last posted here and here.

The ruling means that this case goes away. And while the court only ruled on standing, it also noted that the plaintiffs faced plenty of other obstacles in bringing an emoluments case against the president--everything from the justiciability of emoluments claims to presidential immunity. In other words, even if there's some plaintiff with standing to bring this kind of suit, they'll face serious headwinds for other constitutional reasons.

The ruling is especially notable because it came on the president's motion for mandamus. Mandamus is an extraordinary form of relief, and the standard is quite high. Still, the court ruled that the president met it, underscoring just how wrong the Fourth Circuit thought the district court's ruling was.

The Fourth Circuit held that the plaintiffs lacked standing based on harm to their proprietary interests in their own convention centers when the Trump International Hotel siphons off business from them. According to the court, one problem was that the plaintiffs couldn't show that any violation of the Emoluments Clauses caused their harm:

To begin, the District and Maryland's theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel's other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.

Another problem was redressability--that the plaintiffs' requested relief wouldn't redress their harm:

And, even if government officials were patronizing the Hotel to curry the President's favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.

The court next rejected the plaintiffs' claims of parens patriae standing to protect the economic interests of their citizens. The court said that these claims ran into exactly the same problems that the plaintiffs' own proprietary-harm claims ran into--no causation, no redressability.

Finally, the court rejected the plaintiffs' claim that they suffered an injury to their quasi-sovereign interests--that "[t]heir injury is the violation of their constitutionally protected interest in avoiding entirely pressure to compete with others for the President's favor by giving him money or other valuable dispensations" and that "it is the opportunity for favoritism that disrupts the balance of power in the federal system and injures the District and Maryland." The court said simply that "[t]his alleged harm amounts to little more than a general interest in having the law followed"--not enough for standing.

July 10, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, July 9, 2019

Second Circuit: "RealDonaldTrump" Blocking Users on Twitter Violates First Amendment

In its opinion in Knight First Amendment v. Trump, the Second Circuit ruled that the "First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open dialogue because they expressed views with which the official disagrees."  The case arose from challenges to the President, Donald J. Trump, blocking users on Twitter. Recall that United States District Judge for the Southern District of New York, Naomi Reice Buchwald, issued a 75 page opinion based on the parties motions for summary judgment (and stipulated facts) concluding that found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views. A unanimous panel of the Second Circuit affirms that decision.

The Second Circuit opinion, authored by Judge Barrington Parker, first considered the state action threshold. The government attorneys interestingly represented the President to argue that his account is nongovernmental. The court rejected the government attorneys' position that while the @realdonaldtrump Twitter account is not independent of Trump's presidency, that the specific act of blocking should not be considered state action. Further, the Second Circuit rejected the argument that because the person of Donald Trump established the account before becoming President and will retain control after he leaves the presidency, the @realdonaldtrump account must be considered "private" and not subject to the First Amendment: "the fact that government control over property is temporary, or that the government does not 'own' the property in the sense that it holds title to the property, is not determinative." The court stated:

The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” The President has described his use of the Account as “MODERN DAY PRESIDENTIAL.” The White House social media director has described the Account as a channel through which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” The @WhiteHouse account, an undoubtedly official Twitter account run by the government, “directs Twitter users to ‘Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President’s tweets from the Account “are official records that must be preserved under the Presidential Records Act.”

Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are overwhelming.

Trump_twitter
The court then proceeded to the merits of the First Amendment claim, finding that viewpoint discrimination violates the First Amendment. Interestingly, it is for this proposition and only this one that the court cites the United States Supreme Court's closely divided case from last month, Manhattan Community Access Corp. v. Halleck. The Second Circuit easily finds the account creates a public forum. The Second Circuit noted that the government did not contest the district judge's conclusion that the plaintiffs were engaged in protected speech, but the government argued that the plaintiffs' speech was not burdened by being blocked. While the court stated that the government was correct that the plaintiffs did not have a First Amendment right to have the president listen to them, 

the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.

The court also rejected the government's position that the plaintiffs should employ "workarounds" such as creating new accounts, in large part because the government itself conceded that such workarounds burdened speech.

Finally, the Second Circuit rejected the argument that the Twitter account is government speech and thus not subject to the First Amendment. The court stated that while the president's initial tweets are government speech, the interactive features are decidedly not:

Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President. There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.

The Second Circuit ends with what might be considered a chastisement:

The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.

July 9, 2019 in Executive Authority, Executive Privilege, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Sunday, June 30, 2019

District Court Halts Reprogramming Funds for Border Wall Construction

Judge Haywood S. Gilliam, Jr., (N.D. Cal.) issued a permanent injunction on Friday halting the Trump Administration's efforts to reprogram Defense Department funds to construct portions of a border wall. The ruling largely incorporates the court's reasoning from its earlier preliminary injunction.

The court declined to stay the injunction pending appeal. This means that the injunction will stay in place unless and until the Ninth Circuit vacates it.

The court ruled that Trump Administration officials "are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as El Paso Sector 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1-3 using funds reprogrammed by DoD under Sections 8005 and 9002 of the Department of Defense Appropriations Act, 2019."

At the same time, the court denied the plaintiffs' request for a declaratory judgment concerning the government's invocation of Sections 8005 and 9002 beyond those sectors, its invocation of Section 284 (but only because it didn't have to rule on this, see below), and its compliance with the National Environmental Policy Act.

The ruling does not stop the Administration from using other, valid sources of funding for the wall. Thus, the ruling does not stop the Administration from using $1.375 "for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector" under the Consolidated Appropriations Act of 2019 (although that funding comes with its own statutory restrictions). It also does not stop the Administration from using "[a]bout $601 million from the Treasury Forfeiture Fund."

But those together don't come anywhere close to the $5.7 billion sought by the President in the CAA process. That's why this ruling is such a blow to the Administration's effort to build a border wall. 

Importantly, the ruling is not based on the President's use of "emergency" power or the President's determination of what's in the "national interest." Instead, the court ruled that the reprogramming violated other statutory provisions.

Here's a quick review of the relevant statutory issues:

Sections 2005, 2009, and 284

Under Section 284, "[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the Federal Government" if "such support is requested . . . by the official who has responsibility for [such] counterdrug activities." 10 U.S.C. Sec. 284. But the Administration didn't (and doesn't) intend to use appropriated funds under Section 284 for a border wall. Instead, as the court said, "every dollar of Section 284 support to DHS and its enforcement agency, CBP, [for construction of the wall] is attributable to reprogramming mechanisms."

One of those mechanisms is Section 8005 of the 2019 DOD Appropriations Act. That provision authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)." Under the provision, the transfer must be (1) either (a) DOD working capital funds or (b) "funds made available in this Act to the [DOD] for military functions (except military construction)," (2) first determined by the Secretary of Defense as necessary in the national interest, (3) for higher priority items than those for which originally appropriated, (4) based on unforeseen (5) military requirements, and (6) in  no case where the item for which funds are requested has been denied by Congress. 

The court ruled in its earlier order granting a preliminary injunction that the plaintiffs are likely to show that the funds were denied by Congress (because Congress considered, and denied, full funding for the wall); that the transfer is not based on "unforeseen military requirements" (because there was nothing "unforeseen" about this, as evidenced by "the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018"); and that the Administration's interpretation of Section 8005 would raise constitutional questions (because that interpretation would "authorize[] the Acting Secretary of Defense to essentially triple--or quintuple, when considering the recent additional $1.5 billion reprogramming--the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming," and "reading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an 'unbounded authorization for Defendants to rewrite the federal budget'" in violation of the separation of powers). 

In yesterday's order granting a permanent injunction, the court also rejected the Administration's effort to use Section 9002 of the DOD Appropriations Act of 2019 as a mechanism for reprogramming, because "Section 9002 authority . . . is subject to Section 8005's limitations."

Given that the government acknowledged that "all of the money they plan to spend on border barrier construction under Section 284 is money transferred into the relevant account under Sections 8005 and 9002 . . . the Court's ruling as to Sections 8005 and 9002 obviates the need to independently assess the lawfulness of Defendants' invocation of Section 284."

Section 2808

Section 2808 authorizes the Secretary of Defense to "undertake military construction projects, and may authorities the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law." 10 U.S.C. Sec. 2808. The provision requires that the President first declare a national emergency under the National Emergencies Act. The court previously ruled that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." The court incorporated that reasoning into its order granting a permanent injunction. 

NEPA

NEPA requires the government to undertake an environmental impact assessment of agency actions. The court ruled previously that DHS validly waived NEPA's requirements as to the wall, and that the actions therefore don't violate NEPA. It incorporated that reasoning on Friday. 

June 30, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, June 26, 2019

Auer Deference, Limited, Hangs On (but Chevron may soon go)

In a closely watched administrative law and separation-of-powers case, Kisor v. Wilkie, the Court today declined to overrule Auer v. Robbins, which says that courts should defer to agencies' interpretations of their own ambiguous regulations. At the same time, however, the Court sharply limited its application. As a result, Auer deference hangs on, but in a more (perhaps much more) limited form.

And although the case didn't raise Chevron deference (which says that courts defer to agencies' interpretation of applicable federal law), signs suggest that it's next on the chopping block.

The Court split sharply over whether to overrule Auer. Justice Kagan, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor on this point, wrote to keep it in place, but limit it. Justice Gorsuch, joined by Justices Thomas, Alito, and Kavanaugh, wrote to overrule it.

Writing for the Court, Justice Kagan wrote that Auer deference depends on a preceding two-step, thus limiting it in future applications. "First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertain does not exist, there is no plausible reason for deference." Next, "[i]f genuine ambiguity remains, moreover, the agency's reading must still be 'reasonable.' In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. . . ." Even then,

[s]till, we are not done--for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. . . .

To begin with, the regulatory interpretation must be one actually made by the agency. . . .

Next, the agency's interpretation must in some way implicate its substantive expertise. . . .

Finally, an agency's reading of a rule must reflect "fair and considered judgment" to receive Auer deference. . . .

The Court also held that under stare decisis principles, Auer should stay in place.

Chief Justice Roberts joined much, but not all, of the Court's opinion (the portions specifying the limits of Auer deference and upholding Auer under stare decisis) and wrote separately "to suggest that the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear." Importantly, he also wrote that nothing in today's ruling says anything about the continued validity of Chevron deference: "Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. [Chevron.]"

Justice Gorsuch, joined by Justices Alito, Thomas, and Kavanaugh, would have overruled Auer. (Indeed, Justice Gorssuch read the majority's ruling to more-or-less do that.)

The four conventional progressives differed sharply from four conventional conservatives (minus Chief Justice Roberts) over the history and reasons for Auer deference, whether Auer deference violates the Administrative Procedure Act, and whether it violates the separation of powers. (On this last point, four conservatives (again, minus Chief Justice Roberts) argued that Auer deference meant that executive agencies were exercising the judicial power, in violation of the separation of powers. The four progressives disagreed.) This means that there's 4-4 split on the Court over these questions, with Chief Justice Roberts declining to join either side (but nevertheless voting to uphold Auer under stare decisis).

Justice Kavanaugh, joined by Justice Alito, wrote separately to agree with Chief Justice Roberts that "the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear," and that this case doesn't touch on Chevron deference.

June 26, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, June 24, 2019

Court Strikes Law Criminalizing Possession of Firearm in Connection with "Crime of Violence"

The Supreme Court ruled today that a federal criminal law that enhances criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime" was unconstitutionally vague. The ruling strikes the law.

The case, United States v. Davis, tested the federal law that enhances penalties (over and above a defendant's base conviction) for using, carrying, or possessing a firearm "in furtherance of" any federal "crime of violence or drug trafficking crime." The statute then defines "crime of violence" in two subparts, an "elements clause" and a "residual clause." Under the act, a crime of violence is "an offense that is a felony" and

(A) has as an element the use, the attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court ruled the residual clause, (B), unconstitutionally vague.

Justice Gorsuch wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. He started by noting that the vagueness doctrine is designed to protect due process and the separation of powers:

In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of the courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Justice Gorsuch compared the residual clause to similar language that the Court ruled unconstitutionally vague in Johnson v. United States (defining "violent felony" as a "serious potential risk of physical injury to another") and Sessions v. Dimaya (defining "crimes of violence" for many federal statutes). He rejected the government's argument that the courts should interpret the residual clause on a case-by-case basis (to determine in any individual case whether the crime fit the definition), concluding that reading the act's text, context, and history, the act "simply cannot support the government's newly minted case-specific theory." He also rejected the government's constitutional avoidance argument, "doubt[ing] [that] the canon could play a proper role in this case even if the government's reading were 'possible.'" That's because "no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it."

Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justice Thomas and Alito. Justice Kavanaugh distinguished Johnson and Dimaya, arguing that "[t]hose cases involved statutes that imposed additional penalties based on prior convictions," while "[t]his case involves a statute that focuses on the defendant's current conduct during the charged crime." "The statute here operates entirely in the present[, and] [u]nder our precedents, this statute therefore is not unconstitutionally vague." He also pointed to the statute's impact on crime rates, and many years of application of it:

[One] cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violence crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of Section 924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court's decision today will make it harder to prosecute violent gun crimes in the future. The Court's decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting Section 924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes.

A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. The Constitution's separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.

Chief Justice Roberts did not join the portion of Justice Kavanaugh's dissent that argues that the statute is saved under the unconstitutional avoidance canon.

June 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, June 21, 2019

Nadler Preps to Sue McGahn, Citing Hicks Testimony, Testing Executive Privilege

House Judiciary Chair Jerry Nadler is preparing to sue former White House Counsel Don McGahn over McGahn's refusal to testify based on a White House invocation of absolute executive privilege, according to Politico

According to Politico's story, Nadler says that Hope Hicks's "blanket refusal to tell lawmakers about her tenure in the West Wing is the real-life illustration Democrats needed to show a judge just how extreme the White House's blockade on witness testimony has become."

We posted on Nadler's dispute with Counsel to the President Pat Cipollone over "absolute executive privilege" in McGahn's case here.

Cipollone asserted the same "absolute executive privilege" over Hicks's testimony this week. Cipollone wrote to Nadler in advance of Hicks's scheduled testimony:

Ms. Hicks is absolutely immune from compelled congressional testimony with respect to matters occurring during her service as senior adviser to the President. . . . That immunity arises from the President's position as head of the Executive Branch and from Ms. Hicks's former position as a senior adviser to the President. "Subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned functions."

As the Department has recognized, "[w]hile a senior presidential adviser, like other executive officials, could rely on executive privilege to decline to answer specific questions at a hearing, the privilege is insufficient to ameliorate several threats that compelled testimony poses to the independence and candor of executive councils." . . .

Because of this constitutional immunity, and in order to protect the prerogatives of the Office of President, the President has directed Ms. Hicks not to answer questions before the Committee relating to the time of her service as a senior adviser to the President. . . .

Hicks nevertheless testified in a closed hearing this week. (The full transcript is here.) But White House attorneys repeatedly asserted absolute executive privilege in support of Hicks's refusal to answer a host of questions. Here's the first exchange between Nadler and a White House attorney:

Nadler: It's a matter of public record. Why would you object?

Purpura: Mr. Chairman, as we explained in Mr. Cipllone's letter yesterday, as a matter of longstanding executive branch precedent in the Department of Justice practice and advice, as a former senior adviser to the President, Ms. Hicks may not be compelled to speak about events that occurred during her service as a senior adviser to the President. That question touched upon that area.

Nadler: With all due respect, that is absolute nonsense as a matter of law. . . .

According to Politico, Nadler thinks that Hicks's refusal to answer such basic and silly questions as whether an Israel-Egypt war broke out while she worked in government vividly illustrates how extreme the White House's "absolute executive privilege" is--and provides good fodder for the House's lawsuit against McGahn.

Meanwhile, Republicans on the House Oversight Committee issued a Minority Report on the Committee's resolution recommending that the House find AG William Barr and Commerce Secretary Wilbur Ross in contempt for failing to comply with a Committee subpoena for documents related to the addition of the citizenship question on the census. Among other points, the Report argues that the Committee wrongly inferred that the White House waived executive privilege:

As a "fundamental" privilege rooted in constitutional separation of powers, executive privilege ought to be afforded serious consideration. In addition, because an executive privilege waiver should not be lightly inferred, the Committee should be careful in imputing a waiver for failure to comply with Committee Rule 16(c). The Committee's contempt citation errs in concluding unilaterally that executive privilege can be waived when the President does not invoke executive privilege in accordance with Committee rules.

June 21, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)