Wednesday, December 4, 2019

Second Circuit Says Deutsche Bank Must Turn Over Trump Financial Records to House Committees

The Second Circuit ruled that Deutsche Bank and Capital One have to comply with subpoenas issued by the House Financial Services and Permanent Select Committee on Intelligence for financial records related to President Trump and his businesses. The court denied a preliminary injunction to halt the disclosures. While the ruling is technically preliminary, the court noted that it's effectively a ruling on the merits.

The ruling is yet another blow to President Trump and his continuing quest to keep his financial records secret. (We posted most recently here, on the Supreme Court's stay of a D.C. Circuit mandate to Mazars to release his financial records.) It's also yet another candidate for Supreme Court review.

After the Committees subpoenaed the banks, President Trump, his three oldest children, and some of their organizations sued the banks and the Committees seeking to halt the disclosure. The plaintiffs raised statutory and constitutional claims, although the court noted that President Trump specifically identified himself only as a private citizen.

The court held that the plaintiffs weren't likely to succeed on any of their claims. As to the first statutory claim, the court held that the Right to Financial Privacy Act did not prohibit the disclosures, because the RFPA doesn't apply to Congress. As to the second statutory claim, the court ruled that 26 U.S.C. Sec. 6103 and its several relevant subsections didn't bar the Committees from seeking the records from the banks.

As to the constitutional claim, the court rejected the plaintiffs' contention that the Committees exceeded their power to investigate in issuing the subpoenas. The court noted the breadth of the subpoenas, but nevertheless held that the Committees had a valid legislative purpose (not focusing on possible illegalities committed by the President, but instead "on the existence of such activity in the banking industry, the adequacy of regulation by relevant agencies, and the need for legislation") and that the "public need" to investigate for that purpose "overbalances any private rights affected." On this balancing, the court wrote,

"[T]he weight to be ascribed to" the public need for the investigations the Committees are pursuing is of the highest order. The legislative purposes of the investigations concern national security and the integrity of elections, as detailed above. By contrast, the privacy interests concern private financial documents related to businesses, possibly enhanced by the risk that disclosure might distract the President in the performance of his official duties.

The court went on to hold that the subpoenas were sufficiently tailored to the Committees' legitimate purposes.

The court identified one request, however, that "might reveal sensitive personal details having no relationship to the Committees' legislative purposes," and others "that have such an attenuated relationship to the Committees' legislative purposes that they need not be disclosed." The court remanded to the district court and specified a procedure by which the court could exclude certain "sensitive documents."

As to all other documents not identified for exclusion or possible exclusion, however, the court ordered the banks to "promptly transmit[] to the Committees in daily batches as they are assembled, beginning seven days from the date of this opinion."

The court rejected the amicus government's separation-of-powers argument, holding that this case isn't about the separation of powers (because it involves a congressional request from a third party for information of the President in his personal capacity).

Judge Livingston dissented. She agreed with the majority that the plaintiffs lacked a likelihood of success on the merits of their statutory claims. But she disagreed about how to treat the constitutional claims. She argued that the case raises serious separation-of-powers concerns, and that the current record simply isn't well enough developed to evaluate those concerns. So she argued for a full remand, "directing the district court promptly to implement a procedure by which the Plaintiffs may lodge their objections to disclosure with regard to specific portions of the assembled material and so that the Committees can clearly articulate, also with regard to specific categories of information, the legislative purpose that supports disclosure and the pertinence of such information to that purpose."

December 4, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, November 26, 2019

Supreme Court Stays D.C. Circuit's Mandate to Release Trump Tax Records

The full Supreme Court issued an order yesterday staying the D.C. Circuit's mandate to Mazars to release President Trump's financial records, including tax filings, pending a writ of cert. on or before December 5.

The order extends a previous stay issued by Chief Justice Roberts and prompts President Trump to seek Supreme Court review. But the very brief order itself signals nothing about whether the Court will grant review, or how it will rule if it does. There's no dissenting opinion.

The stay expires on December 5, at noon, if no writ of cert. is filed.

If the Court grants review, we could have a ruling this spring or summer. But we won't get the taxes in the meantime.

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

District Court Says McGahn Must Comply with House Subpoena and Testify

Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday that former White House Counsel Don McGahn must comply with a subpoena issued by the House Judiciary Committee and testify before the Committee. The ruling rejects the sweeping claim that high-level presidential advisors enjoy categorical testimonial immunity.

At the same time, the court held that McGahn could assert appropriate privileges (like executive privilege) to specific questions from the Committee.

The ruling deals a sharp blow to the Trump Administration and its attempts to categorically shield certain White House officials from testifying before Congress. It applies directly to McGahn, of course; but the reasoning applies equally, or even with greater force, to House testimony by senior presidential advisors in the impeachment inquiry. (Why "or even with greater force"? Because the House may be on even firmer ground in issuing any subpoenas in the course of an impeachment inquiry.)

The administration will surely appeal. (DOJ is representing McGahn and presented arguments on behalf of the executive branch.) As a result, we're unlikely to see McGahn testify anytime soon. If the parties continue to press the issue, it'll surely go to the Supreme Court. (The 2008 Miers case, which the court said was "on all fours" with this one, didn't go up on appeal, because the parties settled. That could happen here, too.)

The case arose when the Committee sued McGahn to enforce its subpoena against him to testify in its investigation into whether President Trump and his associates engaged in misconduct in the run-up to the 2016 presidential election. DOJ, representing McGahn, argued that McGahn was a high-level presidential advisor who enjoyed absolute testimonial immunity before Congress.

The court ruled that it had jurisdiction over the case and then rejected DOJ's sweeping claim of immunity. In short, the court held that the issue was already decided by Judge Bates in 2008, in Committee on Judiciary v. Miers. Here's a nice summary (pp. 41-42 of the opinion):

Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts [as to lack of jurisdiction], congressional committee, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC's persistent heralding of these and similar propositions). By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena-enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official authority--when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States--then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information. What is missing from the Constitution's framework as the Framers envisioned it is the President's purported power to kneecap House investigations that Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.

Luckily for this Court, an existing precedent that is on all fours with the instant matter (Miers) already systematically dismantles the edifice that DOJ appears to have erected over the years to enshrine the proposition that a President's senior-level aides have absolute immunity with respect to legislative subpoenas that Congress issues in the course of its investigations . . . .

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

Sunday, November 24, 2019

District Court Gives Trump Limited Protection in Tax Returns Case

Judge Carl J. Nichols (D.D.C.) earlier this week ordered House Ways and Means Chair Richard Neal to provide President Trump and the court contemporaneous notice if he seeks President Trump's tax returns under New York's TRUST Act. Judge Nichols further ordered Chair Neal not to receive the tax returns for 14 days after any request.

The order is designed to allow the court to determine whether a request is valid. Without the notice and delay requirements, Chair Neal could request, and receive, the records without President Trump's knowledge, let alone his challenge, then immediately mooting his claim.

New York's TRUST Act authorizes certain congressional leaders to request and receive certain public officials' state tax returns, including the tax returns of the president, without providing prior notice to the officials. After enactment, President Trump sued, arguing that the TRUST Act violated Article I, because such a request would lack a legitimate legislative purpose, and the First Amendment. He also sought emergency relief under the All Writs Act, asking the court for an order that would allow the parties to litigate the legality of any request for his state returns before New York authorities would release them (and thus render any challenge moot). 

Congressional Democrats moved to dismiss, arguing that they were immune from suit under the Speech and Debate Clause, and that President Trump lacked standing.

The court ruled that it couldn't yet determine whether Chair Neal would be immune from suit under the Speech and Debate Clause, because he hasn't yet requested the records. The court said that Speech & Debate immunity turns on whether any request would concern matters "on which legislative could be had," and thus turns on legislative purpose. But because nobody has made a request, the court can't determine the purpose of any request.

As to standing, the court ruled that President Trump has standing: because "[t]he risk of future harm to Mr. Trump thus requires just a single step by a single actor, Chairman Neal, who is a party to this litigation," "there is sufficiently substantial risk that future harm could occur to warrant limited relief under the All Writs Act." 

The court then ordered that Chair Neal inform President Trump and the court at the same time when he makes any request, and not to receive the tax returns for 14 days after. According to the court, this "will prevent Mr. Trump's claims from becoming ripe and then moot almost simultaneously without notice to him or the Court."

November 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, November 20, 2019

California District Court Strikes Conscience Rule

Judge William Alsup (N.D. Cal.) yesterday vacated the Trump Administrations "conscience rule" designed to allow healthcare workers to decline services if they have a religious objection to a procedure.

We posted recently on a similar ruling out of the Southern District of New York. Judge Alsup's ruling is narrower than the New York ruling, however, and says only that the rule goes well beyond statutory authorization. Both courts vacated the rule in its entirety.

Judge Alsup focused on how the rule's definitions expand conscience protections well beyond the statutory protections. As the court wrote, "[t]hese definitions . . . make the mischief . . . [and are] the heart of the problem."

In particular, the court held that the definitions of "assist in the performance of," "health care entity," "entity," "discriminate," and "referral" expand conscience protections far beyond what the relevant statutes authorize. The court ruled that the conscience rule was therefore contrary to law, and violated the Administrative Procedure Act.

The court described the conscience rule's effect this way: "Under the new rule, to preview just one example, an ambulance driver would be free, on religious or moral grounds, to eject a patient en route to a hospital upon learning that the patient needed an emergency abortion. Such harsh treatment would be blessed by the new rule."

Like the New York court, the California court held that the problems with the rule were so pervasive that it had no choice but to vacate the rule in its entirety.

The ruling means that the administration can appeal, or go back to the drawing board and re-write a conscience rule that comports with the law. But the administration can't enforce this rule.

November 20, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, November 18, 2019

Chief Justice Stays D.C. Circuit Mandate to Release Trump Tax Records

Chief Justice John G. Roberts, Jr., issued an order today staying the mandate of the D.C. Circuit to Mazars to release President Trump's tax records.

Recall that the D.C. Circuit last week denied en banc review of a three-judge panel ruling that the House Committee on Oversight and Reform had authority to issue its subpoena for President Trump's financial records to his accounting firm, Mazars.

Chief Justice Roberts's brief order simply stayed the D.C. Circuit ruling "pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court." (The order is not a ruling on the merits, and does not foretell what the Court might do.) So we'll get more information on Thursday . . . .

November 18, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, November 14, 2019

D.C. Circuit Denies Review in Trump Tax Case, Paves Way for Supreme Court Review

The D.C. Circuit yesterday denied en banc review of last month's panel ruling that the House Committee on Oversight and Reform had authority to issue its subpoena for President Trump's financial records to his accounting firm, Mazars.

The ruling is yet another blow to President Trump and his attempts to protect his taxes. But it also paves the way for Supreme Court review.

We posted on the panel ruling here. The panel held that the Committee acted within its powers, and not in violation of the Constitution, in issuing the subpoena.

Judges Katsas and Rao, both joined by Judge Henderson, separately dissented. Judge Katsas argued that the subpoena posed a "threat to presidential autonomy and independence . . . far greater than that presented by compulsory process issued by prosecutors" in United States v. Nixon "or even by private plaintiffs" in Clinton v. Jones. Judge Rao argued that "the Committee exceeded its constitutional authority when it issued a legislative subpoena investigating whether the President broke the law. Investigations of impeachable offenses simply are not, and never have been, within the legislative power because impeachment is a separate judicial power vested in Congress."

November 14, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, November 6, 2019

District Court Strikes Trump Administration "Conscience Protections" for Healthcare Workers

Judge Paul A. Engelmayer (S.D.N.Y.) struck the Trump Administration rule designed to allow healthcare workers to decline services if they have a religious objection to a procedure. 

We posted on the final rule here.

The ruling deals a significant blow to the Administration's efforts to expand "conscience protections" for healthcare workers beyond what federal statutes currently provide.

The court held that the Health and Human Services rule exceed statutory authority, violate the law, and violated the separation of powers and the Spending Clause. The court held that it did not violate the Establishment Clause.

The rule provides, among other things, that a healthcare worker can decline to participate in a procedure when the worker has a religious or moral objection, that the worker's employer can't discriminate against the worker based on the worker's beliefs, and that HHS can revoke all HHS funding to any employer who violates these provisions. HHS purportedly adopted the rule under authority of 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures. 

The court ruled that the sweeping rule went well beyond HHS's statutory authority, and that the agency therefore exceeded its statutory authority in enacting the rule. It also held that the rule violates Title VII and the Emergency Medical Treatment and Labor Act. And it held that HHS's reasons for enacting the rule were not sufficient (among other things, "HHS's central factual claim of a 'significant increase' of complaints of Conscience Provision violations is flatly untrue."); that HHS's explanation for changing course was insufficient; and that HHS failed to consider the rule's application to medical emergencies and its interplay (and conflict with) Title VII. Finally, the court held that the rule's sweeping definition of "discrimination" "was not a logical outgrowth of the Rule as proposed." 

The court also ruled that HHS violated the separation of powers by adopting a rule that allowed the agency to withhold all federal funding, exceeding the agency's authority under federal law. It held that the rule violated the Spending Clause as against state plaintiffs, because the conditions on receipt of federal funds are ambiguous and impermissibly coercive. 

However, the court rejected the plaintiffs' argument that the rule violated the Establishment Clause, "because the Rule, on its face, equally recognizes secular ("moral") and religious objections to the covered medical procedures."

The court vacated the entire rule (and declined to sever offending portions, given that the APA violates "are numerous, fundamental, and far-reaching") and held it invalid as to any plaintiff. 

November 6, 2019 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, News, Opinion Analysis, Separation of Powers, Spending Clause | Permalink | Comments (0)

Monday, November 4, 2019

Second Circuit Rejects President Trump's Effort to Protect Taxes, Establish Categorical Immunity from Criminal Investigation

The Second Circuit today flatly rejected President Trump's attempt to halt a grand jury subpoena for the President's financial records directed at his accounting firm, Mazars, based on a claim of absolute presidential immunity from all criminal processes (including investigations).

The ruling deals a sharp blow to the President and his extraordinary efforts to conceal his taxes. Still, the President is sure to appeal. (Just last month, the President lost in the D.C. Circuit on a similar case, dealing with a House subpoena directed at Mazars.)

Recall that the President filed this federal case to stop a state criminal process, in particular, a state grand jury's subpoena to Mazars for the President's financial records, including his taxes. The district court ruled that the President's suit was barred by Younger abstention and, in the alternative, that the President was not likely to succeed on the merits of his immunity claim.

The Second Circuit reversed on the abstention question, but affirmed on the immunity question. The court noted that the subpoena was directed at Mazars, not President Trump, and therefore did not require the President to do anything that might interfere with his ability to faithfully execute the law. It noted moreover that the subpoena seeks information that has nothing to do with the President's official responsibilities, and is therefore not subject to any claim of executive privilege.

As to the President's claim of absolute privilege against any criminal process (including even an investigation), the court wrote that the scant authority on this question goes only against the President. In particular, it noted that the Court in United States v. Nixon held that executive privilege and separation-of-powers concerns did not preclude the enforcement of a subpoena for presidential records. (As to the separation of powers, the court noted, "That the Court [in Nixon] felt it unnecessary to devote extended discussion to the latter argument strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private and non-privileged materials simply because he is the President.") Moreover, the court noted that even the two OLC memos that the President cited--the 1973 Dixon memo, and the 2000 Moss memo, only go so far as immunity from indictment, not mere investigation.

Although the ruling doesn't mean that we'll see the President's taxes soon--again, the President is sure to appeal, and that'll take some time--it is a sharp blow against his claim of absolute privilege from all criminal process.

November 4, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, November 1, 2019

Ninth Circuit Rebuffs Administration Effort to Clamp Down on Sanctuary Cities

The Ninth Circuit affirmed a preliminary injunction against the Department of Justice's effort to clamp down on sanctuary cities by imposing two conditions on recipients of the DOJ-administered Byrne JAG grant program. The ruling keeps in place the injunction against DOJ's "notice" and "access" conditions that are designed to encourage local governments to cooperate with federal immigration authorities to identify unauthorized aliens.

The Ninth Circuit ruling is just the latest in a line halting the implementation of these conditions. We posted most recently on sanctuary litigation here.

The case, City of Los Angeles v. Barr, tests the two conditions that DOJ put on Byrne-JAG grant recipients without specific congressional authorization. The first condition, the "notice" condition, requires a recipient to honor DHS's requests for advance notice of the scheduled release date and time of any detained alien held in a grant recipient's correctional facilities. The second condition, the "access" condition, requires a grant recipient to give federal agents access to correctional facilities to meet with detained aliens.

The court rejected DOJ's arguments that two statutory provisions authorized it to impose the conditions. The first, a provision in the Violence Against Women Act, says that the Assistant AG shall "exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General, including placing such special conditions on all grants, and determining priority purposes for formula grants." The court held that the notice and access conditions were not "special conditions" under the provision, "because they are not conditions triggered by specific characteristics not addressed by established conditions, as was the case for high-risk grantees under [Department regulations]." It held that they weren't "priority purposes," because "[t]he notice and access conditions are not included as purposes of the Byrne JAG award, nor are they purposes of either of its predecessor grant statutes." The court said that the first provision therefore didn't authorize the conditions.

The second provision, a section of the Byrne-JAG statute itself, authorizes the AG to obtain certain information and to require coordination with agencies. The court held that maintenance and reporting requirements applied to programs under the statute, and not to notice of a detained alien. And it held that the coordination requirement applied to "agencies affected by the program to be funded by the Byrne JAG award," not "DHS agents who are not part of a funded program." The court said that the second provision therefore didn't authorize the conditions, either.

Because no statute authorized DOJ to impose the conditions, DOJ lacked authority to impose them, and the court upheld a preliminary injunction halting them.

November 1, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers, Spending Clause | Permalink | Comments (0)

Tuesday, October 29, 2019

D.C. Circuit Stays District Court Order to Release Mueller Grand Jury Material

The D.C. Circuit today stayed last week's district court order that the Justice Department release material from the Mueller Report that was redacted because it was part of the grand jury proceeding. We posted on the district court order here.

This means that DOJ won't release the material to the Committee--at least not until the appeals court says so.

The ruling is not a surprise--it simply maintains the status quo--and says nothing about the merits. The court ordered the Committee to file a response to DOJ's emergency motion by Friday, and DOJ to file any reply by next Tuesday.

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

Saturday, October 26, 2019

Former National Security Official Sues for Declaration on Congressional Subpoena, Absolute Privilege

Former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman sued late Friday for a ruling on how he should navigate between a House committee subpoena to testify in the impeachment inquiry and White House instructions not to.

The case is unusual, in that the subject of a subpoena seeks a ruling before making a decision to testify. More commonly, a rebuffed House committee has filed suit to enforce its subpoena. 

Kupperman's complaint sets out two questions for the court. First, the complaint asks whether the White House is right in flatly instructing him not to testify based on its now-familiar categorical assertion of absolute executive privilege. On the one hand, he says that the Office of Legal Counsel "has consistently opined that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties," and that "[t]he Executive Branch has, with few exceptions, refused to permit close White House advisors to the President to testify before Congress since the 1940s when the Executive Office of the President was created." On the other, he points out that the D.C. District rejected just such an absolute, categorical claim of executive privilege in Committee on the Judiciary v. Miers. But he notes that the court "further concluded that the Counsel to the President was not entitled to absolute or qualified immunity because the inquiry did not 'involve the sensitive topics of national security or foreign affairs.'" He also notes that the ruling was stayed pending appeal, and that it settled before the D.C. Circuit had a chance to rule.

Next, the complaint asks whether the committee had authority under House rules to issue the subpoena. He cites Rule XI, clause 2(m), which grants committees subpoena power "[f]or the purpose of carrying out any of its functions and duties under this rule and rule X . . . ." He notes that the rule doesn't specifically include impeachment as one of the "functions and duties," and that Rule X speaks in terms of legislative functions, not impeachment. But he also points out that the D.C. Circuit recently held in Mazars "that Rule XI, clause 2(m) authorized the House Oversight Committee to issue a subpoena in furtherance of an investigation into alleged misconduct by the President," but that Judge Rao dissented on this point.

Kupperman asked the court for a declaration on how to reconcile the competing demands and for expedited review.

October 26, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, October 25, 2019

Court Orders DOJ to Release Grand Jury Material from Mueller Report to House,Validates House Impeachment Inquiry

Judge Beryl A. Howell (D.D.C.) today granted the House Judiciary Committee's application for portions of the Mueller Report that were redacted because they were part of a grand jury proceeding. "Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application."

The ruling deals a sharp blow to the Trump Administration and its attempts to protect grand jury material from the Mueller Report from Congress. It's also a clear validation of the legitimacy of the House's impeachment process. It doesn't plow any new legal ground, however. Indeed, the case is only notable because it rebuffs the administration's extraordinary claims.

Still, there's sure to be an appeal.

The case, In re Application of the Committee on the Judiciary, arose when DOJ refused the House Judiciary Committee's request for grand jury material from the Mueller Report. DOJ cited Federal Rule of Criminal Procedure 6(e). That rule generally prohibits disclosure of "a matter occurring before the grand jury." But it has an exception for disclosure "preliminary to or in connection with a judiciary proceeding." The Committee filed its application with the district court under this exception and requested "the grand jury information referenced in or underlying the Mueller Report as well as grand jury information collected by the Special Counsel relating to four categories of information pursuant to Rule 6(e)'s exception . . . ."

The court ruled for the Committee. The court first concluded that a Senate impeachment trial is "a judicial proceeding." The court said that the phrase "judicial proceeding" has a broad meaning; that an impeachment trial is inherently judicial in nature; that historical practice supports this reading; and that D.C. Circuit law "forecloses any conclusion other than that an impeachment trial is a 'judicial proceeding.'" 

The court next concluded that the Committee's investigation is "preliminary to" that judicial proceeding. It held that the Committee's "primary purpose is to determine whether to recommend articles of impeachment," and that requiring anything more would result in the court impermissibly intruding on Congress's Article I powers. 

Notably, the court emphasized that the Committee's work investigating impeachment is legitimate and constitutionally permissible, and that nothing requires the House to adopt an "impeachment inquiry resolution" to legitimate its work.

Finally, the court surveyed the several reasons why the Committee "has a 'particularized need' for the requested materials,'" including why and how this material may relate to the Ukraine investigation and to any other possible grounds for impeachment.

October 25, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, October 24, 2019

Ninth Circuit Bars Enforcement of ACA Contraception Exemption Rules

The Ninth Circuit this week affirmed a district court's preliminary injunction against agency rules that categorically exempt certain organizations from the Affordable Care Act's contraception requirement. 

The ruling is a blow to the administration's efforts to side-step the ACA's contraception requirements for religious groups. We previously posted on the case here.

The case, California v. U.S. Dep't of Health & Human Services, tests HHS's final rules that exempt certain entities from the ACA's contraception-coverage requirement. The court upheld a district court ruling that the final rules likely violated the Administrative Procedure Act.

The ACA provides that group health plans and insurance issuers "shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in the comprehensive guidelines supported by the Health Resources and Services Administration . . . ." HHS previously exempted group health plans of certain religious employers, like churches. It also had previously provided for an accommodation for certain nonprofits that had a religious objection: those groups merely had to tell HHS that they objected (then HHS would inform the organization's insurer that it had to provide contraceptive care for the organization's employees without any further involvement of the organization). HHS later also exempted certainly closely-held for-profit corporations (after Hobby Lobby) and modified the exemption-trigger to require objecting organizations merely to notify HHS in writing of its objections (after Wheaton College).

But the Trump Administration went a step farther. It issued rules that categorically exempt entities "with sincerely held religious beliefs objecting to contraception or sterilization coverage" and "organizations with sincerely held moral convictions concerning contraceptive coverage." The rules meant that organizations that might previously have sought and received a waiver would be categorically exempt on their own say-so.

The Ninth Circuit ruled that these rules likely violated the APA. In short, the court said that HHS didn't have authority under the ACA to create categorical exemptions:

The statute grants HRSA the limited authority to determine which, among the different types of preventative care, are to be covered. But nothing in the statute permits the agencies to determine exemptions from the requirement. In other words, the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.

The court rejected the government's claim that it issued the rules to harmonize the ACA with the Religious Freedom Restoration Act. The court questioned whether the RFRA even gave the government the authority to determine a violation and then act against federal law to effect it. And it went on to say that the accommodation didn't violate the RFRA, anyway. (Recall that the Court dodged this issue in Zubick.) 

The dissent argued that the court lacked jurisdiction in light of a nationwide injunction issued by the Eastern District of Pennsylvania. The court responded at length, but acknowledged that it's an open question whether a federal court's nationwide injunction strips other federal courts of jurisdiction in a more limited case.

 

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

Tuesday, October 22, 2019

Court to Review CFPB

The Supreme Court on Friday agreed to hear a separation-of-powers challenge to the structure of the Consumer Financial Protection Bureau. The Court granted cert. to determine whether the for-cause removal provision for the head of the CFPB violates the separation of powers. It then ordered the parties to brief whether the for-cause removal provision was severable from the Dodd-Frank Act.

We previously posted on the case, Seila Law LLC v. CFPB, here. Notably, the CFPB itself now joins Seila Law in arguing that the structure is unconstitutional.

The case tests the for-cause removal provision for the head of the CFPB--long a target of opponents of independent agencies within the executive branch. Opponents argue that the for-cause removal provision impermissibly encroaches on the President's authority to execute the law, because it prohibits the President from firing the head of the agency at will.

The Court has long upheld similar protections that create agency independence. But the government argues that those rulings involved multi-member bodies (as in Humphrey's Executor v. U.S.) or "inferior offices" that lack the independent power of the CFPB (as in Morrison v. Olson), so that they don't unduly encroach on the President's authority.

The attack on the structure of the CFPB is just the latest in a long line of challenges that draw on a strong version of the "unitary executive theory," set out most prominently in Justice Scalia's lone dissent in Morrison v. Olson. Justice Scalia's position has gained traction since Morrison, and this case may now make it law.

In a different case dealing with the same question, then-Judge Kavanaugh wrote for a panel of the D.C. Circuit that the CFPB's structure violated the separation of powers. The ruling is a robust endorsement of the unitary executive theory and a roadmap for opponents of the agency's independence.

The severability question means that if the Court strikes the director's for-cause removal provision, it could also overturn the provisions in Dodd-Frank that created the agency in the first place. That could have sweeping effects, even potentially nullifying the agency's prior actions.

The Court hasn't yet scheduled the case for argument.

October 22, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

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)

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)

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)

Tuesday, September 24, 2019

U.K. Supreme Court Unanimously Rules Suspension on Parliament Unlawful

In its opinion and judgment in R. (on behalf of Miller)  v. The Prime Minister and Cherry and others  v. Advocate General for Scotland, the U.K. Supreme Court considered whether "the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful."  The Court's eleven Justices unanimously held it was not.

The prorogation or suspension of Parliament, as we discussed here and which the opinion discusses is the situation in which the Crown suspends Parliament, having both immediate and wider constitutional effects. After the Court's discussion of the events leading up to the prorogation, the Court articulated the issues:

1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The Court first held that the matter was justiciable: "although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it." However, the Court reasoned that to resolve  justiciability, the court must "determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice trespassed beyond that limit, or whether the present case concerns the lawfulness of a particular exercise of the power within its legal limits." This question is "closely related to the identification of the standard by reference to which the lawfulness of the Prime Minister’s advice is to be judged."

Turning to the standard, the Court discussed the U.K.'s "unwritten Constitution;"

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified,it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

The standard — the relevant limit upon the power to prorogue — was expressed by the Court as:

that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

Under that standard, it was clear that "the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account," and this "was not a normal prorogation in the run-up to a Queen’s Speech." While the Court stated it would not inquire into the Prime Minister's motive, there must be a reason for his actions:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

As for remedy, the unlawfulness of the prorogation means that "Parliament has not been prorogued," so that "the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward."

The Court's opinion is a mere 25 pages, written in an accessible style despite its details and discussions of Seventeenth Century practices. ("The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful." ).  

There is also a four page judgment summary. 

Additionally, the UK Supreme Court has made available the fifteen minute video of President of the Supreme Court, Lady Brenda Hale, delivering the summary of judgment. It's definitely worth a watch!

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September 24, 2019 in Comparative Constitutionalism, Courts and Judging, Current Affairs, International, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)