Constitutional Law Prof Blog

Trump Lawyers Gripe to House Intel Chair about Mar-a-Lago Docs Investigation

Former President Trump's lawyers wrote to House Intel Committee Chair Mike Turner to complain about DOJ's investigation into Trump's unlawful retention and mishandling of classified documents at Mar-a-Lago.

In a typo-ridden, ten-page letter, the lawyers argue, in short, that classified documents ended up at Mar-a-Lago because of a rushed document-review process at the end of the Trump presidency (and not because of any illegal behavior), that DOJ botched the investigation from its inception, and that the investigation is politically motivated. They argue that Turner's committee should take over (after an investigation and report by "the intelligence community") and seek "a legislative solution" to document-handling procedures for the White House and former presidents.

Then the lawyers write that "DOJ should be ordered to stand down." The letter doesn't specify who should do the ordering. But certainly the lawyers know this most basic separation of powers principle: A congressional committee cannot order DOJ stand down.

Court Curtails EPA Authority Under Clean Water Act

The Supreme Court today curtailed EPA's authority to regulate wetlands under the Clean Water Act. The sharply divided ruling is a victory for property owners and a blow to federal regulatory authority over certain wetlands.

The case, Sackett v. EPA, tested whether and how EPA could regulate wetlands that aren't connected on the surface to "waters of the United States." Five justices said that EPA could only regulate wetlands that are connected on the surface to "waters of the United States." (Two of the five would've limited the Act even further, so that EPA couldn't regulate any wetlands, unless they were actually navigable waters of the United States.) Four justices disagreed and argued that the CWA authorized EPA to regulate wetlands that were connected to waters of the United States, even if that connection wasn't on the surface.

All nine agreed that the lower court applied the wrong test.

The CWA prohibits the discharge of pollutants into "navigable waters," defined as "the waters of the United States" and waters that are "adjacent" to them. EPA regulations provide that "adjacent wetlands are covered by the Act if they 'possess a "significant nexus" to' traditional navigable waters." This means that wetlands are "adjacent" when they "neighbor" covered waters, even if the wetlands and the covered waters are separated by dry land.

The plaintiffs, Michael and Chantell Sackett argued that EPA's regulation violated the CWA when EPA ordered them "to restore the Site," including wetlands, after they backfilled their property to build a home.

The Court ruled for the Sacketts and agreed that EPA's regulation violated the CWA. The court held that the CWA authorizes EPA to regulate only those wetlands that are "as a practical matter indistinguishable from waters of the United States," such that it is "difficult to determine where the 'water' ends and the 'wetland' begins." This means that the CWA covers only those wetlands that have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands." 

The Court said that EPA needs "clear [statutory] language" if it seeks "to significantly alter the balance between federal and state power and the power of the Government over private property." The Court said that the CWA (even its use of "adjacent") didn't provide this clear authority. The Court also said that EPA's interpretation "gives rise to serious vagueness concerns in light of the CWA's criminal penalties," because the EPA's interpretation may not define the statute "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and "in a manner that does not encourage arbitrary and discriminatory enforcement."

Justice Thomas, joined by Justice Gorsuch, argued that the CWA is even narrower, extending only to actually navigable waters of the United States--those that are "capable of being used as a highly for interstate or foreign commerce." Under this approach, the CWA probably wouldn't apply to any wetlands. He tied this standard to Congress's Commerce Clause power, and then took aim at the Court's Commerce Clause jurisprudence, arguing that today it "significantly depart[s] from the original meaning of the Constitution."

Justices Sotomayor, Kagan, Kavanaugh, and Jackson argued (in separate concurrences) that the Court's approach erroneously narrowed the CWA. They argued that "adjacent" waters under the CWA include not just "adjoining" wetlands (as the majority would have it) but also "wetlands separated from a covered water only by a man-made dike or barrier, natural river, berm, beach dune, or the like." Justice Kavanaugh (joined by Justices Sotomayor, Kagan, and Jackson) argued for this more expansive reading. Justice Kagan, joined by Justices Sotomayor and Jackson, went further, arguing that the Court erred in creating and applying the plain statement rule and that the Court (once again) mangled an environmental statute in order to achieve its preferred policy objectives.

 

 

 

 

 

 

Law Firm Tells Senate Judiciary They Can't Impose Supreme Court Ethics Code

Gibson Dunn, the firm that represents Harlan Crow, wrote to Senate Judiciary Chair Dick Durbin that the Committee lacked authority to investigate Justice Thomas's relationship with Crow and to impose an ethics code on the Supreme Court.

That's some chutzpah.

The firm wrote that Crow wouldn't comply with the Committee's effort to investigate Crow's relationship with Justice Thomas. According to the firm, the Committee's investigation lacks a legitimate legislative purpose, because ultimately Congress cannot impose an ethics code on the Supreme Court--and therefore can't investigate in order to impose such a code. Again according to the firm, a congressional ethics code for the Court would impermissibly encroach on the singular constitutional role and standing of the Supreme Court.

The letter engages with the Necessary and Proper Clause--in particular, the argument that the Necessary and Proper Clause authorizes Congress to impose an ethics code on the Court. But it seems to engage only with the first part of the Clause. According to the letter, the Necessary and Proper Clause doesn't provide Congress with authority to impose an ethics code, because Congress doesn't have the underlying power to impose a code.

But even if that's right--and it's not at all clear that it is--it ignores the second part of the Clause: "The Congress shall have the power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Emphasis added.)

The move seems to put the ball back in the Senate Judiciary Committee's court, to subpoena Crow and then move to enforce the subpoena in the courts. That comes with some risk, of course: the Court (which is both a highly interested player and umpire in this separation-of-powers dispute) seems likely to side with Crow, based on its signals.

Public Employee Union Case Against Debt Ceiling Set for Hearing

U.S. District Judge Richard Stearns (D. Mass.) set a May 31 hearing date in the case brought by a public employee union challenging the constitutionality of the Debt Limit Statute.

The complaint in National Association of Government Employees v. Yellin alleges that

[t]he Debt Limit Statute is unconstitutional because it puts the President in a quandary to exercise discretion to continue borrowing to pay for the programs which Congress has heretofore duly authorized and for which Congress has appropriated funds or to stop borrowing and to determine which of these programs the President, and not the Congress, will suspend, curtail, or cancel altogether.

The plaintiffs argue that under the Anti-Deficiency Act, "the President does not have authority to suspend or cancel any laws or any programs that are, in fact, funded by Congress." Yet "the Debt Limit Statute has a retroactive effect and requires a reduction of operations of government approved by Congress, with no legislative direction as to which obligations to cancel."

In plain English, under the Anti-Deficiency Act and the Constitution the President must spend money validly appropriated by Congress, but the Debt Limit Statute (without raising the debt ceiling) prohibits the President from spending money appropriated by Congress. Given this reality, and given that the Fourteenth Amendment prohibits any person from questioning the validity of the public debt, "the Debt Limit Statute necessarily confers upon the Defendant President the unlawful discretion to cancel, suspend, or refuse to carry out spending approved by Congress, without the consent or approval of Congress as to how the President may do so, in order to pay the bondholders."

This approach doesn't hang its hat on the Fourteenth Amendment, at least not alone. Instead, it draws principally on the separation of powers--Congress's power to appropriate public funds, and the President's responsibility to spend those funds. The complaint say that if the Debt Limit Statute interferes with the President's duty to enforce congressional spending measures, then it's unconstitutional.

Can Minority Members on a Congressional Committee Sue to Get Agency Material?

The Supreme Court this week agreed to hear a case testing whether minority members on a congressional committee can sue to enforce their statutory right to obtain material from an agency.

But this isn't just any minority, and it's not just any agency material. The dispute arises out of congressional Democrats' efforts to obtain material from the General Services Administration about the Trump organization's lease with the Old Post Office for the Trump International Hotel.

In February 2017, the then-House Oversight Committee ranking member and seven other Democrats (but not a majority of the Committee, because Dems were in the minority) asked GSA for material related to GSA's 2013 lease of the Old Post Office building to Trump Old Post Office LLC. The members cited 5 U.S.C. Sec. 2954, which provides

An Executive agency, on request of the [Committee on Oversight and Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on [Homeland Security and] Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.

GSA declined; the members sued; and GSA argued that the members lacked standing.

The case, Maloney v. Murphy, now pits two theories of standing against each other. On the one hand, the members say that they have standing based on an informational harm--that they have a right to information (under Section 2954), and that the GSA denied them that information. This is a little like you or me seeking to enforce a FOIA request in court: a statute grants us a right to information, an agency declines to provide it, and we can sue. But the theory depends on members suffering an informational harm that is personal and individual to them (even if as members of Congress), and not a harm on behalf of Congress (or a committee of Congress) as a body. They point to Powell v. McCormack, among other cases, where the Court has held that a member of Congress has standing based on an injury that is particular to them as a legislator. The D.C. Circuit adopted this theory when it ruled that the members have standing.

On the other hand, GSA (then and now) says that individual members lack standing based on a harm to Congress, the House, or their committee. GSA points to Raines v. Byrd, where the Court held that individual members of Congress can't sue to challenge the Line Item Veto Act, because the harm went to Congress, not to the individual members.

The difference will likely turn on how the Court interprets Section 2954. If the Court reads the statute to authorize individual members to obtain agency material as individual legislators, to serve their individual legislative functions, then the Court will likely say that the members have standing. But if the Court reads the statute to protect the right of the committees to obtain information, it'll likely say they don't.

SCOTUS Stays District Court Title 42 Ruling, Sets State Intervention for Argument

The Supreme Court stayed a district court ruling that vacated the Trump Administration's Title 42 policy and set states' motion for intervention in the case for oral argument in the February sitting.

The ruling means that the Title 42 policy can stay in place, and that the Court will rule later this year whether twelve states led by Republican attorneys general can intervene in the case on the merits.

We last posted here.

The case arises out of the Trump Administration's Title 42 policy, which turned away immigrants--including immigrants who were entitled to apply for asylum--because the Administration determined under federal law that immigration posed a "serious danger" of "introduc[ing]" a "communicable disease." A district court ruled the policy invalid, however, and halted it. States then moved to intervene, arguing that the Biden Administration wouldn't sufficiently defend it on appeal. (The Biden Administration, in fact, is appealing the district court ruling. But it also moved to halt the policy earlier this year, saying that it's no longer justified. In other words, the government is saying that the Trump Administration had authority to implement Title 42 in the first place, and that it has authority to revoke it now that it's no longer necessary and justified. The states take all this as evidence that the Biden Administration won't sufficient defend the policy on appeal.) But they moved quite late, and the D.C. Circuit rejected their motion. They then applied to the Supreme Court for expedited review of the D.C. Circuit's denial, and a stay of the district court's ruling striking the policy.

The Court granted both requests. It stayed the district court's ruling (which allows Title 42 to remain in place) and set the states' motion for intervention for oral argument in its February sitting. The Court ordered the parties to brief this single question: Whether the State applicants may intervene to challenge the District Court's summary judgment order.

Justices Sotomayor and Kagan noted without comment that they'd deny the application. Justice Gorsuch dissented, joined by Justice Jackson, arguing that the Court need not, and should not, get involved in this dispute, at least on an expedited basis. He wrote that there's no rush to determine whether the states can intervene in this dispute over a policy that everyone agrees has "outlived its shelf life" (because it's no longer justified by COVID).

The Court's ruling specifically says that it "does not prevent the federal government from taking any action with respect to [the Title 42 policy]." But another case does, at least for now: A different federal district court ruled in an entirely different case that the Biden Administration's revocation of the Title 42 policy was unlawful. The Administration appealed that ruling to the Fifth Circuit (where the case is pending). In the meantime, the Administration considers itself barred from revoking Title 42.

All this means that Title 42 remains in place, even though everyone seems to agree that it's no longer justified by COVID.

January 6 Committee Makes Criminal Referrals for Trump and Others

The January 6 Committee today made criminal referrals to the Department of Justice for former President Trump and others who were involved in the insurrection. The move is the first time that Congress has referred a former president for criminal prosecution.

But remember: the Committee's action doesn't have any formal legal significance, and it doesn't compel the Justice Department to act. Congress lacks that power. The Committee can simply make the referrals, turn over its findings . . . and hope that DOJ will move.

So why would the Committee go to the trouble of referring to DOJ? Most obviously, to pressure DOJ to move, and to highlight the significance of its own findings.

The DOJ is already investigating. The Committee's referrals might only light a fire under that investigation. The referrals have no formal legal significance.

The Committee's "introductory material" to its final report is here.

CJ Roberts Allows Title 42 Policy to Stay in Place . . . For Now

Chief Justice Roberts issued an order today halting a district court ruling that struck the Trump Administration's Title 42 policy. The administrative stay means that the Title 42 policy will remain in place, notwithstanding the district court's ruling, until the Chief Justice or the full Supreme Court has a chance to consider the issue more thoroughly.

That could be soon. Chief Justice Roberts ordered that the government respond tomorrow, Tuesday.

The Title 42 policy orders U.S. immigration officials to turn away covered noncitizens from any country who try to enter through the Mexican or Canadian borders. This means that the U.S. government turns away asylum seekers from any country who enter through those borders. The Trump Administration adopted the policy in the putative interest of public health--reducing transmission of COVID-19--and purported to use CDC's authority to implement it. But the policy was widely seen as an effort simply to reduce and deter immigration through the Mexican border. Absent the policy, an individual who enters the U.S. even without authorization is entitled to apply for asylum in the U.S.

Today's moves started with a November 15 decision of the U.S. District Court for D.C. that the Title 42 policy violated the Administrative Procedure Act and set a deadline for Wednesday for the government to halt the program. A group of states sought to intervene in the appeal, but the D.C. Circuit said on Friday that they were too late. The states then applied to Chief Justice Roberts for a stay of the district court ruling. Chief Justice Roberts granted the stay, but put the case on a super-fast briefing schedule, suggesting that the Court could rule quickly on whether to stay the district court's ruling pending appeal and possibly take up the case itself.

SCOTUS to Hear Biden Loan Forgiveness Case

The Supreme Court today agreed to hear a case challenging the Biden Administration's federal student loan forgiveness program. The case comes to the Court on the government's application to vacate the injunction halting the program entered by the Eighth Circuit. We last posted here.

The Court will hear oral argument on the program in February. In the meantime, the Eighth Circuit's injunction stays in place. The Court gave no clue as to its thinking on the merits in its brief order.

No Absolute Immunity for Trump for January 6 Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Emmet G. Sullivan (D.D.C.) ruled this week that former President Donald Trump does not have absolute immunity from a civil-damage lawsuit for his behavior related to the insurrection on January 6. The ruling came in an order granting the plaintiffs' motion to file a second amended complaint in a lawsuit against Trump and others for interfering with the electoral count. In other words, it's not a final ruling on the merits; it just means that portions of the case against Trump can move forward.

The court held that Trump's activities leading up to and on January 6 in an effort to disrupt the electoral count were not within the "outer perimeter" of his official duties as president, and therefore, under Nixon v. Fitzgerald, he did not enjoy absolute immunity from civil-damage claims based upon those activities. The court held that Trump's activities were political, not official, because they "entirely concern his efforts to remain in office for a second term."

The this is now the third time that the D.C. district held that Trump's January 6-related activities were outside the scope of his official duties. See Thompson v. Trump (also denying absolute immunity) and United States v. Chrestman (rejecting a defense in a criminal case against a January 6 insurrectionist).

Can the Biden Administration Issue Guidelines that Prioritize Immigration Enforcement?

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral argument tomorrow in United States v. Texas, the case testing whether the Biden Administration's guidelines that prioritize immigration enforcement violate federal law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

In September 2021, the Department of Homeland Security issued Guidelines that set priorities for the enforcement of federal immigration law. In particular, the Guidelines prioritized three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. DHS set these priorities because Congress has not allocated sufficient resources for the agency to apprehend and remove all removable noncitizens. Texas and Louisiana sued to halt the Guidelines. The district court ruled in their favor and vacated the Guidelines nationwide. The Fifth Circuit and the Supreme Court both declined to stay that ruling pending appeal.

INTRODUCTION

Federal immigration law, by its plain terms, requires the Department of Homeland Security (DHS) to apprehend and remove removable noncitizens in certain circumstances. But given limited resources, DHS must exercise judgment in complying with those requirements. Moreover, the law generally grants executive officers some discretion in how they enforce the law. This case pits federal immigration law against those enforcement realities. But before we even get to the merits, this case raises significant questions over the states’ standing to sue, and whether the district court had authority to vacate the Guidelines nationwide.

ISSUES

1. Do states have standing to challenge government Guidelines that set priorities for the enforcement of federal immigration law?
2. Do the federal Guidelines violate the substantive provisions of immigration law?
3. Did the district court have authority to vacate the Guidelines?

FACTS

In September 2021, the Secretary of Homeland Security issued Guidelines for the Enforcement of Civil Immigration Law (Guidelines). The Guidelines set priorities for the “apprehension and removal” of noncitizens by Immigration and Customs Enforcement (ICE). The Secretary explained in an accompanying memo (the Considerations Memo) that the Guidelines were necessary because “there are more than 11 million undocumented or otherwise removable noncitizens in the United States,” yet DHS lacked “the resources to apprehend and seek the removal of every one of these noncitizens.” (We refer to the Guidelines and the Considerations Memo together as the “Guidelines” below.) In other words, Congress has allocated just a fraction of the resources that the Department of Homeland Security (DHS) would need to apprehend and remove every noncitizen who is deportable under the law, and the agency therefore needs to make choices in how it prioritizes enforcement. (The Guidelines apply only to “apprehension and removal.” They do not apply to “detention and release determinations” for noncitizens already in DHS custody.)

The Guidelines prioritize three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. In determining whether a noncitizen poses a threat to public safety, the Guidelines call for an assessment based on “the totality of the circumstances,” and not “bright lines or categories.” The Guidelines set “aggravating factors” that weigh in favor of enforcement, including “the gravity of the offense” and the “use of a firearm.” They also set “mitigating factors,” including “tender age” and military service.

The Guidelines, by their own terms, are discretionary. The Guidelines do “not compel an action to be taken or not taken in any particular case.” Instead, they leave “the exercise of prosecutorial discretion to the judgment of” ICE officers. And while they provide for supervisory review of a line-officer’s enforcement decision, the Guidelines do not “create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” The Secretary’s Considerations Memo explained that the Guidelines are “consistent with” and “do not purport to override” two statutory provisions that require that certain noncitizens remain in detention during removal proceedings or while awaiting removal.

Texas and Louisiana sued to halt the Guidelines. (The states previously sued to halt earlier versions of the Guidelines. But that case was dismissed when the Secretary issued the final version of the Guidelines in September 2021.) The district court ruled for the states and vacated the Guidelines nationwide. The United States Court of Appeals for the Fifth Circuit denied a stay of the district court’s order pending appeal. The Court also denied a stay pending appeal, and agreed to hear the case.

CASE ANALYSIS

This case raises three distinct issues. Let’s examine them one at a time.

Standing

Before we even get to the merits, the government argues that the states lack standing to sue, because the states have not suffered a sufficiently direct harm. The government says that the states have alleged only that the Guidelines will require them to spend more on law enforcement and social services. But the government claims that these kinds of indirect harms are never enough for states to sue the government. (If they were, states could sue the government over any number of federal policies and programs.) Moreover, the government asserts that the states lack standing, because, as a general matter, a third party that is not subject to prosecution itself lacks standing to sue the government over its prosecutorial decisions. Finally, the government contends that the Guidelines will not necessarily lead to increased costs for the states, because they only prioritize enforcement given limited resources (and do not cut overall enforcement under limited resources).

The states counter that they have standing, because the Guidelines caused them to “bear costs related to law enforcement, recidivism, healthcare, and education,” as the district court concluded. The states say that this position is not unbounded, as the government contends. Instead, they assert that their position requires states to demonstrate the same standing requirements as other litigants, “albeit with some amount of special solicitude under certain circumstances owing to their unique place in the federal system.” The states contend that the government’s position would upend the Court’s longstanding approach to state standing by making states “disfavored litigants.”

The Guidelines’ Legality

In testing the legality of the Guidelines, two provisions of federal immigration law are principally in play. The first, at 8 U.S.C. § 1226(c), says that DHS “shall take into custody” noncitizens convicted of certain offenses when they are released from criminal custody and “may release” them “only” in limited circumstances. According to DHS, this means that these noncitizens “generally must remain in custody during the pendency of their removal proceedings,” unless their release is authorized by law or court order. But at the same time, DHS and its predecessor agency have consistently interpreted Section 1226(c) to retain the agencies’ “general prosecutorial discretion” to “choose not to pursue removal of such an individual in the first place.”

The second provision, at 8 U.S.C. § 1231(a)(1), says that DHS “shall remove” a noncitizen within 90 days after a final order of removal or other triggering event. Moreover, DHS “shall detain” such noncitizens during the 90-day removal period. “Under no circumstance” shall DHS release a noncitizen who is removable on certain criminal and national-security grounds. According to DHS, such a noncitizen “must remain detained for the duration of the removal period unless release is required to comply with a court order.”

The government argues that the Guidelines do not violate these statutory provisions. As an initial matter, it says that Section 1226(e) bars judicial review of the Guidelines. (Section 1226(e) prohibits review of the Secretary’s “discretionary judgment regarding the application of” Section 1226 and prohibits courts from “set[ting] aside any action or decision . . . regarding the detention or release of any” noncitizen.) It also says that Section 1231(h) precludes courts from requiring the government to comply with Section 1231. (Section 1231(h) reads, “Nothing in [Section 1231] shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States . . . .”)

Going to the merits, the government argues that the mandatory language in Sections 1226 and 1231 (“shall take into custody” and “shall detain”) do not override the general principal of law-enforcement discretion. The government says that this conclusion is supported by the context and history of those provisions and by the “longstanding practice spanning multiple Administrations.” According to the government, this conclusion especially holds when, as here, the government faces “perennial constraints on detention capacity.” Moreover, the government asserts that its prioritization was reasonable, and that the government sufficiently explained its reasons (and, contrary to the district court’s findings, adequately considered countervailing factors, like the risk of recidivism by non-prioritized noncitizens and the states’ interests).

Finally, the government argues that the Guidelines do not violate the requirements for notice-and-comment rulemaking under the Administrative Procedure Act (APA). The government contends that the Guidelines meet the exceptions for “general statements of policy” and rules of agency “practice” or “procedure” under the APA, and therefore do not require notice-and-comment procedures.  

The states counter that Sections 1226 and 1231 contain mandatory language that requires the government to detain nonimmigrants. They say that the Guidelines violate these plain requirements. Moreover, the states contend that the Guidelines are arbitrary and capricious in violation of the APA, because they fail “to consider important aspects of the problems that criminal aliens create, including recidivism and States’ reliance interests” on federal enforcement of immigration law. Finally, they assert that the government failed to comply with notice-and-comment procedures under the APA in issuing the Guidelines. They contend that these procedures are required, because the Guidelines “substantively changed a regulatory regime.”

The District Court’s Vacatur

The government argues first that the district court’s vacatur was improper under 5 U.S.C. § 706(2), a part of the APA that authorizes courts only to “hold unlawful and set aside” agency action. The government says that this provision “merely directs a court to disregard an unlawful agency action in resolving the case before it,” not to nullify or render it void. According to the government, this means that the district court only had authority to grant relief (like an injunction and declaratory relief) to the parties before it, and not to vacate the Guidelines nationwide.

The government argues that even if Section 706(2) authorized the district court’s nationwide vacatur, a provision in federal immigration law, 8 U.S.C. § 1252(f)(1), prohibits that relief in this context. Section 1252(f)(1) prevents courts (except the Supreme Court) from “enjoin[ing] or restrain[ing]” government immigration policies, except as they apply “to an individual alien against whom proceedings . . . have been initiated.” The government claims that the district court’s vacatur violates the plain terms of this provision, because it is not limited to the case of “an individual alien.”

The states counter that neither the APA nor Section 1252(f)(1) prevented the district court from vacating the Guidelines. As to the APA, the states say that the government’s position “that the APA does not authorize vacatur at all ignores text, context, and decades of practice and precedent.” Moreover, they say that Section 1252(f)(1)’s prohibition on court orders that “enjoin or restrain” government policies does not apply to vacatur. They contend that injunctive relief and vacatur “are different remedies with different consequences that require different showings.” For these reasons, the states say that the district court had full authority to vacate the Guidelines.

SIGNIFICANCE

On its face, this case tests whether the mandatory immigration enforcement provisions in federal law are, in fact, mandatory. The plain language of the law, read quite narrowly, seems to require DHS to apprehend and detain noncitizens in certain circumstances. But the broader context and history of the law, along with DHS’s limited resources and the reality of executive discretion in enforcing the law, allow for significant leeway in how DHS implements those provisions. This case tests the former against the latter.

Telescoping out, the case also tests a decades-long history of executive exercise of discretion in the enforcement of immigration law, including the apprehension and detention of deportable noncitizens. Administrations under presidents of both parties have long issued guidelines and priorities for immigration enforcement similar to the Guidelines at issue here. For very practical and immediate reasons, the government has issued guidelines and priorities in order to channel limited resources, which have been perpetually insufficient to apprehend and detain all deportable noncitizens. For only slightly less direct reasons, the government has issued guidelines and priorities in order to ensure fairness in immigration enforcement and to reflect important national interests, sometimes related to foreign affairs and national security. Reading the precise provisions narrowly and literally, and ignoring the broader context and history, as the states would have it, could dispense with the long-running and bipartisan exercise of discretion in immigration enforcement.

Telescoping out once more, this case is just one front in the increasingly partisan battles over immigration. In particular, the case is one among the several efforts that border states and certain Republican state officials are lodging, or have lodged, against immigration policies and practices by Democrats. As an effort in the courts (and not just in ordinary politics), this case raises important questions about the authority and role of the courts in this increasingly partisan arena. For example: Should the courts hear the states’ challenge to federal enforcement priorities when the states’ only harms are secondary, and may not be remedied by judicial relief, anyway? Is it appropriate for a single district court, hand-selected by the plaintiffs, to vacate the Guidelines nationwide?

Notwithstanding the multi-layered underlying issues, however, the case gives the Court several easy exit ramps. For one, the Court could rule that the states lack standing. For another, the Court could rule that the district court lacked authority to vacate the Guidelines nationwide. For a third, the Court could rule that the immigration provisions cited by the states themselves bar courts from halting government policy. Look for those justices who would prefer to stay out of this hot-button political dispute to lean heavily into these issues at oral argument.

 

The Disqualification Clause Clause: What is it? How does it work?

Steven D. Schwinn, University of Illinois Chicago School of Law

Now that Trump has formally announced his candidacy in the 2024 presidential election, there's renewed buzz about the application of the Disqualification Clause. Here's a very brief explainer, along with some resources to help sort out what it is, and how it works.

First, the easy part: what it is. The Disqualification Clause disqualifies certain individuals from holding state and federal offices. The Clause, in Section 3 of the Fourteenth Amendment, was enacted shortly after the Civil War in order to bar confederate officers from holding public office. But its terms continue to apply today. It reads,

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds of each House, remove such disability.

Next, the harder part: how it works. The Clause itself raises several questions. For one, the Clause doesn't say how it's enforced, or who can enforce it. We do have some clues, though. We know that Congress can enact legislation "to enforce . . . the provisions" of the Fourteenth Amendment (under Section 5 of the Fourteenth Amendment). We know that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (Art. I, Sec. 5.) And we know that state officials and even private individuals in some cases have authority to challenge the qualifications of candidates for state and federal offices by filing quo warranto lawsuits.

For another, the Clause doesn't specifically say whether it applies to the president. But there are clues: the weight of historical scholarship says that it does.

For a third, the Clause doesn't define "insurrection or rebellion" or "aid or comfort to the enemies thereof," and it doesn't say how to determine whether a person "engaged" in the former or "g[a]v[e]" the latter. Again, we have clues. We know that Congress can call forth the militia "to suppress Insurrection." And we know that Congress enacted the Insurrection Act, which authorizes the President to call up the armed forces and militia in response to "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings." Another part of the Insurrection Act authorizes the use of armed forces when insurrectionists "oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws." The Act holds accountable anyone who "incites, sets on foot, assists, or engages" in those acts.

As to "giv[ing] aid or comfort to the enemies," this may require some connection to a foreign and opposing government, not just a U.S. citizen opposing the U.S. government.

It seems clear that the January 6 insurrection was, indeed, an "insurrection or rebellion" under the Clause. And those who "incite[d], set[] on foot, assist[ed], or engage[d]" in that insurrection probably "engaged" in it for the purpose of the Clause.

But given the dearth of recent judicial precedent, we don't have a ton of contemporary judicial interpretation on enforcement. The Fourth Circuit earlier this year ruled that the 1872 Amnesty Act, which removed disqualification for confederate officers, did not remove disqualification for Madison Cawthorn in his bid for reelection to the House. The Eleventh Circuit ruled more recently that Marjorie Taylor Greene's case challenging a state process to determination disqualification was moot, because the process concluded in her favor. The best we have comes from a New Mexico state court that removed a county commissioner and prohibited him from seeking or holding any future office. That analysis is good, but it's just one court.

Rep. David Cicilline (D-RI) indicated last week that he's looking to introduce federal legislation that would ban Trump from the presidency. Other legislation is currently pending. In particular, H.R. 7906 authorizes the AG to investigate Section 3 disqualifications and pursue them in court.

CREW, which indicated earlier that it'd file to challenge Trump under the Disqualification Clause, issued letters to state AGs urging them to pursue quo warranto actions in their states. And FreeSpeechforPeople.org and Mi Familia Vota seek to garner public support for state AG actions to enforce the Disqualification Clause.

For more, here's a Congressional Research Service Legal Sidebar on the Clause.

AG Garland Appoints Special Counsel in 2020 Transfer-of-Power, Document Retention Investigations

AG Merrick Garland today appointed John L. Smith as special prosecutor in the investigations into efforts to interfere with the lawful transfer of power after the 2020 election and Trump's illegal retention of government documents at Mar-A-Lago. Smith is a former head of DOJ's Public Integrity Section and former chief prosecutor for the special court at the Hague.

The appointment means that the investigation and any criminal charges will now come from the special counsel, operating independently of ordinary DOJ channels. AG Garland likely made the appointment to avoid even the appearance of a conflict now that Trump declared his candidacy for the presidency in 2024. We don't know how quickly the special counsel will move, and we likely won't know that for some time. But the office isn't starting from scratch: it can pick up where DOJ left off its own investigations into these matters.

The appointment authorizes the special counsel to investigate these matters and to prosecute federal crimes that arose out of them. Neither investigation nor prosecution is limited to Trump (or anyone else). But the "authorization does not apply to prosecutions that are currently pending in the District of Columbia, as well as future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021." As the appointment explains, those matters "remain under the authority of the United States Attorney for the District of Columbia."

Here's AG Garland's announcement; here's the actual appointment. Here's a link to the DOJ regs authorizing the appointment of a special counsel, and outlining their powers and processes.

In addition to investigation the insurrection and document retention, AG Garland's appointment letter and the regs authorize the special counsel to investigate "any matters that arose or might arise directly" from those investigations, including obstruction and perjury.

The special counsel will operate almost entirely outside the DOJ's chain of command. But that doesn't mean that AG Garland is necessarily bound to all the special counsel's decisions. 28 C.F.R Sec. 600.7(b) provides:

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or procedural step, and may after review conclude that the action is so inappropriate or unwarranted under established Department practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress . . . .

Moreover, special counsel staff are "subject to disciplinary action for misconduct and breach of ethical duties," and the AG can remove the special counsel "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."

Eighth Circuit Halts Education Debt Forgiveness Program Pending Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eighth Circuit granted a motion to stop the Biden Administration from implementing its student-debt forgiveness program pending appeal. The court just a few weeks ago granted an emergency motion for an administrative stay, to the same effect.

The ruling halts implementation of the program nationwide during the state's appeal. It's another setback for the loan-forgiveness program in the courts.

The court said, contrary to the district court, that the Missouri Higher Education Loan Authority had standing as a state agency, or, if not, because of "MOHELA's financial obligations to the State treasury, the challenged student loan debt cancellation presents a threatened financial harm to the State of Missouri." Moreover, "the equities strongly favor an injunction considering the irreversible impact the Secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose."

The court said that it couldn't limit an injunction to the plaintiff states, however, because MOHELA services loans nationwide, and because "tailoring an injunction to address the alleged harms to the remaining States would entail delving into complex issues and contested facts that would make any limits uncertain in their application and effectiveness."

Trump Sues to Halt January 6 Committee Subpoena, surprising nobody

Steven D. Schwinn, University of Illinois Chicago School of Law

As expected, former President Trump sued on Friday to stop the January 6's Committee's subpoena for his testimony and documents.

Trump objects to the subpoena on several grounds:

[T]he Committee did not issue the Subpoena to further a valid legislative purpose; the Subpoena is unwarranted because other sources can provide the information the Subpoena seeks; the Subpoena is broader than reasonably necessary; the Subpoena infringes on executive privilege; the Subpoena infringes President Trump's First Amendment rights; the Committee is not duly authorized; and the Committee lacks authority to issue subpoenas.

Just to be clear: These grounds are entirely spurious. Some are flat wrong, factually or legally or both. Others have been roundly rejected in the courts. Again and again. Still, Trump raises them.

For example, Trump argues that a former president is absolutely immune from compelled testimony. But his best source for this is a letter that President Truman wrote in response to a subpoena by the House Un-American Activities Committee. Every other authority he cites speaks to current, not former, presidents. The difference matters: the reason for the president's absolute immunity (if such immunity exists) is that Congress, by compelling testimony, could frustrate the current president's exercise of their Article II responsibilities (by taking the president away from their job), and thus undermine the separation of powers. This reason applies with far less force, if at all, to a former president. The reason's simple: a former president is no longer exercising Article II responsibilities. In any event, neither OLC nor the Supreme Court has definitively extended absolute immunity from compelled congressional testimony to a former president. And Congress obviously thinks it has the power. That counts for something.

Trump also argues that the subpoena doesn't serve a legitimate legislative purpose. This is a familiar trope in Trump team litigation. And it's failed consistently in the courts, including in court challenges to the January 6 Committee's authority.

The strategy--the same as always--is clear: Trump's trying to run the clock in hopes that the subpoena (and the entire Committee) go away with a new Republican Congress. Or, if not, stall in the courts as long as possible.

Judge Strikes Biden Student Loan Forgiveness

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Mark T. Pittman (N.D. Tex.) ruled that the Biden Administration's student-loan forgiveness program is unconstitutional. The Administration already said that it'd appeal.

Recall that the Eighth Circuit previously temporarily halted the program pending an appeal. At the same time, the Supreme Court declined to temporarily halt the program in a different case.

Judge Pittman's ruling is different than these, in that it isn't temporary. Instead, it "vacates" the program in its entirety.

The court ruled that the program violated the newly discovered major questions doctrine. The court said that the program involved a matter of "vast 'economic and political significance'" (because it'll "cost more than $400 billion"), yet Congress hadn't clearly authorized it in the HEROES Act. Under West Virginia v. EPA's major questions doctrine, the court said that the program is therefore unconstitutional.

That's striking, given that the HEROES Act plainly authorizes the Secretary of Education to "waive or modify" federal student loans "as the Secretary deems necessary in connection with a war or other military operation or national emergency." ("The term 'national emergency' means a national emergency declared by the President of the United States.") It's striking, too, because, unlike the West Virginia case, the Administration's action here doesn't impose a regulatory scheme. If the major questions doctrine reaches this program, it'll likely reach a whole lot of other programs that we might not necessarily have expected under West Virginia, too--programs where the president has statutory authority to declare an "emergency," or where an administration takes non-regulatory action. (And remember: the Court hasn't defined "economic and political significance." So we don't know how or whether that limiting principle would apply.)

The ruling is striking at an even more basic level, on standing. Under the standing rule, a plaintiff, in order to get into federal court, has to plausibly plead (1) that they've suffered a harm, (2) that the defendant's action caused the harm, and (3) that the plaintiff's requested relief will redress the harm. Here, the plaintiffs in the case didn't qualify for the full forgiveness. That was their "harm" for standing purposes. And they connected that harm to the forgiveness program, demonstrating causation.

Yet they asked the court to vacate the entire program (as opposed to remand to the Department to fix it so that they'd qualify). The court obliged, and, as a result, they (still) don't get forgiveness (and neither does anyone else). This seems counterproductive, at best, as a practical matter. But it also seems to play fast and loose with the third standing requirement, that the requested relief must redress the harm.

Government, House File Arguments in Trump Tax Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The solicitor general and the House today filed separate oppositions to former President Trump's emergency application to the Supreme Court for a stay of the lower court's ruling that Treasury must turn over Trump's taxes to the House Committee on Ways and Means.

The filings follow the Court's temporary stay and super-fast briefing schedule in the case. (The Court's temporary stay prevents Treasury from turning over the taxes until it resolves Trump's emergency application.)

Both briefs argued that the lower court got it right--that the Committee has a legitimate legislative purpose for requesting the taxes, and that the Committee's request doesn't violate the separation of powers.

The Committee brief added that the Court should rule quickly, because time's running out on this Congress, and (implicitly) that delays will simply play into Trump's run-the-clock strategy, should the Republicans take the House: "Delaying Treasury from providing the requested tax information would leave the Committee and Congress as a whole little or no time to complete their legislative work during this Congress, which is quickly approaching its end."

The Committee also added that a ruling for Trump would undermine Congress's authority more generally:

The "power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function." And more recently, this Court in Mazars confirmed that "[l]egislative inquiries might involve the President in appropriate cases" and rejected an approach that gave "short shrift to Congress's important interests in conducting inquiries to obtain the information it needs to legislative effectively." To rule for the Trump parties on the merits would disregard those important Congressional interests and "risk seriously impeding Congress in carrying out its responsibilities" by preventing Congress from completing any investigation involving a former President whenever there are allegations that the investigation was politically motivated.

Next move's for the Court.

SCOTUS Temporarily Blocks Committee Access to Trump Taxes

Chief Justice Roberts issued an order temporarily blocking the House Committee on Ways and Means from obtaining former President Trump's tax returns from Treasury. The D.C. Circuit previously rebuffed Trump's various claims and ruled that the Committee could obtain the returns under a federal law that requires Treasury to turn over tax returns "[u]pon written request from the chairman of the Committee on Ways and Means." Chief Justice Roberts's order (as D.C. Circuit justice) temporarily stays that ruling and blocks the Committee from receiving the returns, pending Court consideration.

At the same time, Chief Justice Roberts ordered the Committee to respond to Trump's application by November 10, indicating that the Court intends to move quickly on this.

We previously posted here.

Full D.C. Circuit Allows Committee To Get Trump Tax Returns

The full D.C. Circuit, with no noted dissent, declined to review a panel ruling that held that the House Committee on Ways and Means could obtain former President Trump's tax returns from Treasury. This isn't really a surprise: the panel ruling in favor of the Committee was thorough and sound.

But this doesn't mean that the Committee will actually get the returns anytime soon. That's because Trump is sure to seek review at the Supreme Court. Even if the Court declines review quickly, Trump'll certainly drag this out until the next Congress moves in. If Republicans take the House, the whole thing'll become moot.

Why Did the Eighth Circuit Halt Educational Debt Cancellation (after Justice Barrett allowed it)?

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Barrett last week denied an emergency request by a Wisconsin taxpayer association to halt the Biden Administration's program to cancel qualifying student debt. The ruling meant that the Administration could continue to operate the program pending the association's appeal.

Then the Eighth Circuit granted the same emergency relief to Missouri in a parallel case. This ruling halted the program pending appeal.

The two cases raise the same legal claims. District courts in both cases dismissed the cases because the plaintiffs lacked standing. (The Seventh Circuit refused to halt the program while the Wisconsin group appealed.)

So why the difference? Neither Justice Barrett's order nor the Eighth Circuit order contains any legal analysis. So we don't know for sure. But here's a take:

In order to establish standing, a plaintiff has to plausibly allege that they've suffered, or will imminently suffer, a concrete and personal harm, caused by the defendant's actions, and redressible in federal court. Because the harm must be concrete and personal (to the plaintiff), a person or organization cannot establish standing simply because they don't like the way the government is using their taxes. This kind of "generalized taxpayer" harm is too diffuse, and the Court has rejected it as a basis for standing.

The plaintiff in the Wisconsin case is a taxpayer association that unashamedly pleads generalized taxpayer standing. The district court easily rejected standing in that case, and the Seventh Circuit easily declined to halt the Administration's program pending the plaintiff's appeal. Justice Barrett then easily denied the plaintiff's request for emergency relief.

The plaintiff in the Missouri case, in contrast, is the state itself. It asserted standing on behalf of an organization that the state established to service federal loans. The district court ruled that the state didn't have authority to sue on the organization's behalf, and therefore lacked standing. While this seems right (or at least not obviously wrong), it's a closer case than the Wisconsin plaintiff.

That difference may explain the difference in the two preliminary rulings. The Eighth Circuit might've thought that Missouri could establish standing, where Justice Barrett might've seen that the Wisconsin organization couldn't.

But the key word there is "preliminary." No court has yet ruled on the merits. The Administration justifies the debt-cancellation program under the Higher Education Relief Opportunities for Students Act of 2003, which authorizes the Secretary of Education to "waive or modify" terms of federal student loans in an emergency, here COVID-19. The plaintiffs claim in short that the Administration's debt cancellation exceeds the statutory authority, or, if it doesn't, that the statute grants too much discretion in violation of the recently discovered major questions doctrine. Here's the Office of Legal Counsel's opinion on the issue.