Monday, November 8, 2021
The Supreme Court will hear oral arguments this morning in a case testing the interplay between the state secrets privilege and the Foreign Intelligence Surveillance Act. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Does Section 1806(f) of the Foreign Intelligence Surveillance Act, which requires certain judicial procedures when the government seeks to protect evidence in certain cases in the national security, displace the state-secrets privilege?
Case at a Glance
For at least 14 months between 2006 and 2007, the FBI operated a surveillance program within the Muslim community in Southern California in order to identify potential terrorists. Members of the community sued, arguing that the program and its agents engaged in illegal searches, and that the program and its agents illegally targeted members of the community because of their religion. The government moved to dismiss the claims under the state-secrets privilege.
The state-secrets privilege is an evidentiary privilege with constitutional underpinnings that allows the government to move to block certain evidence that could threaten the national security. At the same time, Section 1806(f) of the Foreign Intelligence Surveillance Act prescribes a judicial process in certain circumstances for determining whether evidence could threaten the national security. This case tests the interplay of the state-secrets privilege and Section 1806(f).
Does Section 1806(f) displace the state-secrets privilege?
For at least 14 months between 2006 and 2007, the FBI operated a surveillance program in Southern California called Operation Flex. According to the FBI, the purpose of the program “was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.” According to the plaintiffs, the “central feature” of the program was to “gather information on Muslims.”
As part of the program, the FBI engaged Craig Monteilh to be a confidential informant. Monteilh’s supervisors, FBI Special Agents Kevin Armstrong and Paul Allen, instructed him to gather information on Muslims, particularly religious Muslims and individuals who might influence young Muslims.
In July 2006, Monteilh started attending the Islamic Center of Irvine (ICOI) in order to gather information. Monteilh attended daily prayers, classes, and special events; declared his desire to convert to Islam; and adopted the name Farouk al-Aziz. He also visited at least seven other mosques in Orange County, and infiltrated the local Muslim community in other ways, too.
On instructions from Armstrong and Allen, Monteilh secretly recorded nearly all of his interactions and took extensive hand-written notes. Monteilh ultimately gave the FBI “hundreds of phone numbers; thousands of email addresses; background information on hundreds of individuals; hundreds of hours of video recordings of the interiors of mosques, homes, businesses, and associations; and thousands of hours of audio recordings of conversations, public discussion groups, classes, and lectures.”
In early 2007, Armstrong and Allen instructed Monteilh to start asking more direct questions about the community’s willingness to engage in violence. Monteilh told several members of the community that he believed that he had a duty as a Muslim to take violent action and that he had access to weapons.
Several IOCI members reported Monteilh to community leaders, and one of them, in turn, called the FBI and instructed concerned members to call the Irvine Police Department. The IOCI sought and received a restraining order against Monteilh.
In October 2007, the FBI released Monteilh. His identity as an informant was revealed in February 2009, as part of a criminal prosecution for naturalization fraud of one of the IOCI member who initially reported Monteilh. The FBI, Monteilh, and others subsequently confirmed that Monteilh worked for the FBI. While the FBI disclosed some information about Monteilh’s activities, it maintains that “certain specific information” must remain secret in the interest of national security.
In September 2011, three members of the local Muslim community sued as a putative class. (Plaintiff Sheikh Yassir Fazaga was an imam at the Orange County Islamic Foundation; plaintiffs Ali Uddin Malik and Yasser AbdelRahim are practicing Muslims who regularly attend services at the ICOI.) They alleged that the FBI and its agents violated a variety of constitutional and statutory provisions, falling into two broad categories: unconstitutional search claims and religious-freedom claims. The plaintiffs’ religion claims allege that the defendants violated the First Amendment Religion Clauses, equal protection, the Privacy Act, the Religious Freedom Restoration Act (RFRA), the Foreign Intelligence Surveillance Act (FISA), and the Federal Tort Claims Act (FTCA).
The government moved to dismiss the case on a variety of grounds. As relevant here, the government invoked the state-secrets privilege and moved to dismiss the religion claims (but not the search claims) on that ground. (The state-secrets privilege protects evidence that, if revealed, could threaten the national security.) The government argued that the religion claims could not proceed without risking disclosure of certain evidence protected by the privilege. In support of its claim, the government submitted public and classified declarations by Department of Justice leaders.
The district court dismissed the plaintiffs’ FISA claim against the government on other grounds, and allowed the plaintiffs’ FISA claim against individual agents to go forward.
In a separate order addressing the government’s motion to dismiss under the state-secrets privilege, the court dismissed all of the plaintiffs’ remaining religion claims and the Fourth Amendment search claim (even though the government did not seek dismissal of the search claim under the state-secrets privilege). In so ruling, the court relied “heavily” on the government’s classified declarations and supplemental memorandum.
The court did not use the procedure for review of the evidence set out in Section 1806(f) of the FISA, which prescribes an in camera, ex parte process for courts to use when the government claims that “disclosure [of particular evidence] in a case or an adversary hearing would harm the national security of the United States.” The court said that Section 1806(f) did not apply to non-FISA claims. (Remember that the government moved to dismiss only the non-FISA religion claims based on the state-secrets privilege. The court addressed the FISA claims separately.)
The Ninth Circuit reversed. The appellate court held that the Section 1806(f) procedure “displaces the dismissal remedy of the common law state secrets privilege as applied to electronic surveillance generally.” It ruled that the district court therefore should have used the Section 1806(f) procedures to evaluate the evidence and determine whether the state-secrets privilege applied. It directed the lower court, on remand, to apply Section 1806(f)’s ex parte and in camera procedures to “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.” The Ninth Circuit wrote that the lower court, in making this determination under Section 1806(f), could disclose to the plaintiffs “portions of the application, order, or other materials relating to the surveillance” if disclosure was “necessary to make an accurate determination.”
The FBI then brought this appeal.
Section 1806(f) of the FISA directs a court to apply certain procedures whenever the government claims that disclosure of evidence in certain types of cases could threaten the national security. In particular, the Section requires the court to “review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” The Section goes on to say that “the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”
The state-secrets privilege, in contrast, is an evidentiary privilege, with constitutional, separation-of-powers roots, that allows the government to protect evidence in proceedings when the government certifies that the evidence, if revealed, could threaten the national security. At the outside, the privilege allows the government to move to dismiss an entire case, if the putatively protected evidence is so central to the case that the case cannot move forward without it.
The case asks whether the Section 1806(f) process “displaces” the state-secrets privilege. This question, in turn, depends on the scope and operation of the state-secrets privilege and the interplay between the two.
The government argues first that the Ninth Circuit erred in ordering the district court to apply the Section 1806(f) procedure in the first place. The government points out that Section 1806(f) is available in only three limited situations defined in the Section itself, and that none of these includes a civil action like the plaintiffs’ case. The government says that the Ninth Circuit wrongly shoehorned this case into two of those three situations. First, the government contends that the Ninth Circuit erroneously considered the government’s motion to dismiss the case as notice of the government’s intent “to enter into evidence or otherwise use or disclose” the privileged information “against an aggrieved person,” thus satisfying one of the three situations that trigger a Section 1806(f) process. The government says that this misconstrues the state-secrets privilege, which is designed to protect information, not signal its disclosure and use. Second, the government asserts that the Ninth Circuit wrongly considered the plaintiffs’ request for relief in its civil suit as a “motion or request * * * to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance,” another of the three situations that trigger a Section 1806(f) process. The government contends that the plaintiffs’ prayer for relief in their civil case is simply not a “motion.”
Moreover, the government argues that the Ninth Circuit erred in applying the Section 1806(f) procedure. The government claims that the Ninth Circuit “reasoned that Section 1806(f) provides a mechanism for litigating a civil plaintiff’s claims to final judgment.” (Remember that the Ninth Circuit’s remand order directed the district court to “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.”) But the government says that “nothing in Section 1806(f) suggests that it was intended to be used to litigate, ex parte and in camera, the merits of a case.” Instead, the government contends that a Section 1806(f) proceeding culminates only in a grant or denial of a motion related to the admissibility of evidence, not a “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.”
The government argues next that Section 1806(f) does not displace the state-secrets privilege. It says that nothing in FISA even mentions the state-secrets privilege, much less suggests that FISA displaces it. And it says that Section 1806(f) is perfectly compatible “with the continued vitality of the privilege.” The government contends that even if there were any doubt, the government should interpret Section 1806(f) as not displacing the privilege.
Finally, the government argues that the state-secrets privilege has constitutional roots and is an essential aspect of presidential power. It claims that any congressional effort to displace or abrogate the privilege must therefore include a clear statement, and neither Section 1806(f) nor any other provision of FISA does.
The plaintiffs counter first that the state-secrets privilege does not support dismissal of their case. They contend that the state-secrets privilege, like other evidentiary privileges, supports the exclusion of evidence from a case so that no party can use it. But the plaintiffs say their religion claims don’t depend on secret evidence. And in any event, they contend that the government seeks both to exclude secret evidence and to use that evidence in its own defense in support of dismissal. They claim that the government’s effort both to exclude and to use the evidence is inconsistent with the very nature of a privilege (which is designed to entirely exclude evidence from a case).
Moreover, they assert that the government, in so arguing, improperly conflates the state-secrets evidentiary privilege with a categorical bar to litigation, which the Court has only applied in “government-contracting lawsuits where the “very subject matter’ of the suit is secret.” The plaintiffs say that they never contracted with the government, and never assumed the risk that they would forfeit judicial review of any contract, and so the categorical bar does not apply. The plaintiffs contend that the district court improperly dismissed their case, and that it should have simply excluded any privileged evidence and allowed the case to move forward.
The plaintiffs argue next that even if the state-secrets privilege would support dismissal, Section 1806(f) displaced it in cases involving electronic surveillance. They contend that Section 1806(f) applies here, because the government seeks to “use” secret information in its defense to the plaintiffs’ religion claims, and because the plaintiffs are “aggrieved persons” who asked, through their prayer for relief in their complaint, to “obtain” information that the government illegally gathered. Contrary to the government, they say that they therefore satisfy the threshold requirements for Section 1806(f).
The plaintiffs claim that the government’s arguments to the contrary are not supported by Section 1806(f)’s plain text, which, they say, is not limited to procedural motions. Moreover, they contend that the government’s reading would render meaningless Section 1810 of FISA, which creates a civil damages remedy for victims of unlawful electronic surveillance. They explain: “Defendants’ argument would leave the government free to win dismissal of virtually any Section 1810 suit simply by asserting that the underlying conduct was secret—whether or not it was lawful—thus nullifying the civil damages remedy Congress created to ensure surveillance remains constrained by law.”
The plaintiffs argue, contrary to the government, that FISA does, in fact, clearly displace the state-secrets privilege. They say that while FISA does not use the phrase “state secrets privilege,” it nevertheless refers to the privilege when it uses the phrase “national security,” which raises exactly the same concerns. The plaintiffs contend that this poses no constitutional problem, as the government argues, because Congress has clear authority to displace the state-secrets privilege as part of its authority to regulate surveillance and establish evidentiary rules for civil litigation over that surveillance. Moreover, the plaintiffs assert that displacement raises no constitutional problem for individual government agents, because FISA itself, in Section 1806(g), requires that any remedies must be “in accordance with the requirements of law,” including the Constitution.
Finally, the plaintiffs argue that the government’s position raises serious constitutional problems. They say that the government, by seeking both to protect secret information and to use that information in its own defense, effectively deprives the plaintiffs of “any judicial determination of whether the Government broke the law.” This aggrandizes the power of the executive at the expense of the judiciary and Congress, and leaves the plaintiffs without a judicial remedy.
On the face of it, this case asks an extremely narrow and hyper-technical question—whether Section 1806(f) of the FISA displaces the state-secrets privilege. But in order to answer that question, the Court will likely have to address a much bigger issue, that is, the scope and operation of the state-secrets privilege.
In particular: How should courts treat and evaluate the government’s assertion of the state-secrets privilege over information that the government obtained through surveillance?
The government adopts a muscular view of the privilege. It emphasizes the privilege’s constitutional roots; argues that Congress cannot displace it or channel its operation through ordinary legislation like Section 1806(f); and contends that the courts must broadly defer to the government’s assertion of the privilege, and even dismiss cases when the government claims that they cannot be litigated without revealing privileged information that could threaten the national security. In other words, the government claims that courts must take the government’s say-so when it invokes the privilege, based only on the government’s affidavits in support, and without independently assessing—even ex parte and even in camera—the putatively protected material. And because of the privilege’s constitutional roots, the government claims that Congress cannot displace, or even channel, this deference through ordinary legislation. At risk of stating the obvious, the government’s interpretation of the privilege puts a tremendous amount of power in the hands of the executive branch to conceal particular evidence and even shut down cases entirely. (The government doesn’t have a particularly reassuring track record in this regard. In the very case where the Court established the modern privilege, United States v. Reynolds, 345 U.S. 1 (1953), the government turned out to have misled the courts about its need to invoke the privilege to protect the national security.)
The plaintiffs, for their part, proffer a much narrower view of the privilege. They emphasize the privilege’s common-law roots, and argue that Congress can, and did, displace it through Section 1806(f). But this approach could lead to the disclosure of secret information, even if only to a judge, alone in chambers, exercising discretion in a Section 1806(f) process, and thus threaten national security. This approach could also lead to the disclosure of secret information to other parties, as a judge might determine necessary, even further threatening national security.
The Court may have to decide between these approaches (or a third, middle way) and address the scope of the privilege for the first time since Reynolds.
I say “may” because the Court has an off ramp, maybe even two, and could dodge harder questions about the scope of the state-secrets privilege, at least for now. For one, the Court could simply rule that the plaintiffs’ case does not qualify for the Section 1806(f) process, as the government argues, and dodge the harder question whether Section 1806(f) displaces the state-secrets privilege. If so, the Court could simply reverse the Ninth Circuit and remand for further proceedings (which would presumably include consideration of the government’s assertion of the state-secrets privilege). For a second, the Court could rule on the displacement question without fully expounding the state-secrets privilege. If so, the Court could rule on the merits and, if it ruled for the government, remand the case for further proceedings (which again would presumably include consideration of the government’s assertion of the state-secrets privilege). Either way, the Court could avoid the harder questions about the scope of the state-secrets privilege. But either way, the case would almost certainly come back to the Court.
One final note. This is one of two cases this Term to raise issues related to the state-secrets privilege. (That’s extraordinary, by the way. But it’s also much needed, given that the Court hasn’t said anything serious about the privilege since Reynolds.) The other case is United States v. Zubaydah, argued on October 6, and previewed in the last issue of Preview. Zubaydah raises different questions about the privilege. But between the two cases, the Court this Term has a singular opportunity to define the scope of the privilege and state determinatively how it shall operate in the courts.
Friday, October 22, 2021
Missouri and Texas sued the Biden Administration for stalling on wall construction along the southern border. The states claim that Congress appropriated funding for wall construction--and only wall construction--and that the Biden Administration's stall violates the separation of powers, federal appropriations law, and federal administrative law.
The states argue that Congress appropriated $1.37 billion to the Department of Homeland Security in FY 2021 and FY 2020 for "construction of a barrier system along the southwest border" and specified that these funds "shall only be available for barrier systems." They say that when the Biden administration delayed spending the money for wall construction, it impermissibly intruded on Congress's appropriations power in violation of the separation of powers, failed to enforce the law (under the Take Care Clause), and violated federal appropriations law and federal administrative law. The states ask the court to compel the administration to spend the appropriated funds for "construction of a barrier system along the southwest border."
The Biden Administration, for its part, halted wall construction and used appropriated funding to bring wall construction projects into compliance with federal environmental law and federal statutory community-stakeholder-consultation requirements. (DHS had waived these requirements in the Trump Administration. The Biden Administration DHS said that it wouldn't waive them.) The GAO ruled this past summer that this didn't amount to an illegal "impoundment" under the Impoundment Control Act; instead, it was a "programmatic delay." (The states' complaint repeatedly mischaracterizes the GAO opinion.) By this reckoning, the Biden Administration's halt isn't a violation of law; instead, it's a move to comply with law--environmental and stakeholder-consultation requirements that the Trump Administration waived. The Biden Administration also plans to use some of the funding to remediate the environmental damage wrought by wall construction in the Trump years.
Before the case even gets to the merits, however, standing may be an issue. The states claim that the Biden Administration's halt on wall construction leads to greater unauthorized immigration, which causes them to incur costs in issuing drivers licenses, providing public education, and providing health care. It's not at all clear that they can plausibly allege that the Biden Administration's halt causes these harms, and that an order to re-start building would remedy them, as required for Article III standing.
Tuesday, October 19, 2021
Former President Donald Trump yesterday sued to stop the House Select Committee to Investigate the January 6th Attack on the United States Capitol from obtaining White House and other records from the National Archives.
The move comes after the Committee requested records related to the insurrection from the Archives, and President Biden declined to assert executive privilege to halt their release.
Trump's lawsuit claims principally that the Committee lacks a "legitimate legislative purpose" in the material and therefore exceeds its Article I authority. "No investigation can be an end in itself; there is nothing in the overwhelming majority of the records sought that could reasonably be justified as a means of facilitating the legislative task of enacting, amending, or repealing laws." The lawsuit goes on to claim that the Committee's work looks like law enforcement, not law making, in violation of the separation of powers.
In pitching the lack-of-legitimate-lawmaking-purpose claim, the complaint relies on the Court's four-factor approach in Mazars. At least some of the Mazars analysis, however, turned on the fact that congressional committees sought personal financial records (and not official records) of the president. The complaint doesn't try to square that reasoning in Mazars with the fact that the Select Committee seeks only official records.
The complaint also doesn't seriously wrestle with the idea that the Committee seeks the documents to investigate an attack on Congress to stop the electoral-vote count. Seems like that, if anything, would pretty squarely fall within Congress's "legitimate legislative purpose."
The lawsuit also claims executive privilege, attorney-client privilege, attorney work-product privilege, and deliberative process privilege; and it contends that the requested material touches on national security and law enforcement. It contends that to the extent that the Presidential Records Act authorizes the sitting president to override the former president's assertion of executive privilege, the PRA is unconstitutional.
The suit asks the court to declare that "the Committee's requests are invalid and unenforceable under the Constitution and laws of the United States," or, alternatively, to declare "that the Presidential Records Act is an unconstitutional violation of the separation of powers and is void ab initio." It also asks for preliminary and permanent injunctions to stop the Committee "from taking any actions to enforce the requests, from imposing sanctions for noncompliance with the requests, and from inspecting, using, maintaining, or disclosing any information obtained as a result of the requests," and to stop the Archives from releasing the documents, at least until "Trump has had sufficient opportunity to conduct a comprehensive review of all records the Archivist intends to produce before any presidential record is produced to the Committee."
Friday, August 27, 2021
The Supreme Court issued an emergency order late yesterday halting the CDC's eviction moratorium. While the ruling technically only vacates the stay of a lower court ruling striking the moratorium (and allows the government's appeal to move forward, but without a stay of the district court's ruling), it all but decides the underlying merits.
The Court said that the CDC lacked statutory authority to impose the moratorium. The applicable provision, 42 U.S.C. Sec. 264(a), states:
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
In short, the Court said that the moratorium exceeded this authority, because it wasn't in line with the kind of specific examples in the second sentence. In other words, it read the second sentence as limiting the authority in the first sentence. It said that if the statute authorized the moratorium, then it could authorize nearly any measure--"a breathtaking amount of authority"--and this goes too far. The Court also said that Congress was "on notice" but failed to enact legislation to specifically reauthorize the moratorium. (Congress had previously specifically authorized the moratorium in COVID relief legislation, but that authorization lapsed, leaving only Section 264(a) as possible authority for the moratorium.)
The Court said that "[t]he applicants not only have a substantial likelihood of success on the merits--it is difficult to imagine them losing."
Justice Breyer dissented, joined by Justices Sotomayor and Kagan. He read the statute just the opposite--that the first sentence plainly authorizes a moratorium, and that the second sentence, if anything, only expands the authority in the first sentence. Justice Breyer also focused on the moratorium's tailoring (geographic and otherwise), and the harm that would likely result to tenants under the Court's holding.
The ruling halts the CDC's eviction moratorium. But Congress could change this by specifically reauthorizing the CDC to issue a moratorium.
The ruling does nothing to state and local moratoriums; it only addresses the CDC's moratorium.
Wednesday, August 25, 2021
The Supreme Court denied the Biden Administration's request for a stay pending appeal of a lower court order directing the Biden Administration to reinstate the Migrant Protection Protocols program initiated by the Trump Administration. We posted on the lower court's order here.
The ruling means that the Biden Administration must send immigrants along the southern border to Mexico pending their asylum and deportation proceedings, consistent with the MPP, pending the Administration's appeal of the district court's order.
The ruling is a blow to the Biden Administration's effort to halt the controversial program. And while it's only preliminary--the ruling technically only orders the Biden Administration to reinstate the MPP program pending the Administration's appeal on the merits--it also doesn't bode well for the Administration. The very brief order stated that the Administration "failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious." (In support, the Court cited Department of Homeland Security v. Regents of University of California, in which the Court rejected the Trump Administration's effort to rescind DACA as arbitrary and capricious in violation of the Administrative Procedure Act.)
Justices Breyer, Sotomayor, and Kagan indicated that they would have granted the Administration's motion for a stay, but they didn't say why.
Saturday, August 21, 2021
In an order by Justice Alito, the Supreme Court late yesterday temporarily stayed the district court injunction directing the Biden Administration to reinstate former President Trump's MPP policy until Tuesday at midnight. The brief order will allow the full Court to consider the Biden Administration's emergency application for a stay pending appeal.
Recall that the district court issued a permanent, nationwide injunction directing the Biden Administration to reinstate the MPP policy and send certain immigrants to Mexico pending their deportation proceedings. The Administration sought a stay of the injunction pending appeal, but the Fifth Circuit declined. The Administration then sought an emergency stay at the Supreme Court.
The Supreme Court's order temporarily stays the injunction until Tuesday. It also directs the plaintiffs in the case to file their response to the Administration's emergency application by 5 p.m. on Tuesday. A Court order will presumably follow before midnight Tuesday.
All this is still preliminary, though: the Biden Administration is still pursuing its appeal on the merits to the Fifth Circuit. The Court's ruling late yesterday only means that the Biden Administration need not reinstate the MPP policy pending its appeal of the district court order until Tuesday, and perhaps later, depending on what the Court says.
Wednesday, August 18, 2021
The Ninth Circuit ruled that removal protections for Department of Labor Administrative Law Judges did not violate the separation of powers. The ruling rebuffed a claim by a coal corporation in a Black Lung Benefits Act case. It means that the agency ruling against the corporation stands, and that DOL ALJs are safe . . . for now.
That "for now" is because the Supreme Court has been on a tear to rule that more and more removal protections violate the separation of powers. This case could give the Court another opportunity to move in the direction of complete presidential control over the removal of executive officers--toward a robust "unitary executive theory."
The case, Decker Coal v. Pehringer, arose after a DOL ALJ awarded a claimant Black Lung Benefits Act benefits, and the Benefits Review Board upheld the award. Decker Coal filed a motion for reconsideration and a motion to reopen the record; the ALJ denied the motions, and the BRB affirmed. This appeal followed.
The Ninth Circuit rejected Decker Coal's argument that removal protections for DOL ALJs violated the separation of powers. By statute, DOL ALJs can be fired only for good cause determined by the Merit Systems Protection Board, members of which, in turn, can be removed by the president only for "inefficiency, neglect of duty, or malfeasance in office." Decker claimed that the dual for-cause removal protection violated the Court's ruling in Free Enterprise Fund, which held that the dual for-cause removal protection for members of the PCAOB violated the separation of powers. The Ninth Circuit disagreed, for three reasons.
First, the court ruled that in contrast to PCAOB members, "the ALJ here was performing a purely adjudicatory function in deciding the BLBA claim."
Next, the court said that DOL itself decided to use ALJs to adjudicate BLBA benefits. It noted that by statute DOL could have used any "[q]ualified individuals appointed by the Secretary of Labor," including individuals who did not enjoy for-cause removal protections, and that the president could order DOL to use such individuals instead of ALJs. In other words, the court said that Congress didn't impermissibly encroach upon the president's power to direct the executive branch; DOL (and ultimately the president) did, and they can change it if they like.
Finally, the court said that the president can exercise control of ALJs through the BRB, which reviews ALJ decisions, and members of which are appointed without removal protections by the Secretary of Labor (who, of course, enjoys no removal protections).
Tuesday, August 17, 2021
The Ninth Circuit rejected civil damage claims by the family of a Mexican victim who was shot dead on the U.S.-Mexico border by a U.S. Border Patrol officer. The ruling leaves the family without a civil damage remedy for the shooting.
The case, Perez v. U.S., arose when a U.S. Border Patrol officer shot and killed a Mexican citizen on the U.S. side of the U.S.-Mexico border fence. Although the parties differ as to the facts, it appears that the Officer shot the victim after the victim threw, or threatened to throw, rocks. (Border Patrol policy apparently authorizes officers to use deadly force against individuals who throw rocks. This is called the "Rocking Policy.")
The victim's family sued under the Alien Tort Statute, the Federal Tort Claims Act, and Bivens. The Ninth Circuit rejected each of the claims.
As to the ATS claim, the court said that the U.S. hadn't waived sovereign immunity, and that an ATS claim doesn't circumvent immunity. Even if the plaintiffs alleged a violation of international law, the court said that U.S. sovereign immunity prevented them from succeeding in an ATS claim.
As to the FTCA claim, the court said that the plaintiffs filed out of time, and failed to satisfy requirements for equitable tolling. In particular, the court said that the plaintiffs mistakenly believed that they couldn't simultaneously file an FTCA claim and a Bivens claim (which is why they didn't initially file an FTCA claim within time), when circuit precedent said that they could. Because they made a mistake of law, the court said that it couldn't toll the FTCA statute of limitations.
Finally, as to Bivens, the court ruled that the case raised a new Bivens context, and that special factors counseled against extending a Bivens remedy. In particular, the court said that the plaintiffs' claim against the Border Patrol Chief (for failing to reverse the Rocking Policy) would improperly involve the court in formulating and implementing policy. And the court said that the plaintiffs' claims against the officer who shot the victim raised national security concerns.
The court acknowledged that the ruling left the family without a civil damage remedy for the killing. But it also said expressed "regret that the law compels this result."
Sunday, August 15, 2021
Judge Matthew Kacsmaryk issued a permanent, nationwide injunction halting the Biden Administration's rescission of the Trump Administration Migrant Protection Protocols policy. The court ruled that the Biden Administration's rescission was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in violation of the Administrative Procedure Act.
The sweeping and aggressive ruling also directs the Administration to provide monthly updates to the court on immigration action at the Southwest Border in order "[t]o ensure compliance with this order."
The ruling means that the Biden Administration will have to reinstate MPP, unless and until it comes up with a more thorough justification for rescission . . . and unless and until it can find the resources to detain immigrants domestically pending their asylum or deportation proceedings.
The court stayed the ruling for seven days, however, to give the Biden Administration time to seek a stay pending appeal. The Administration surely will seek a stay and appeal; there's much more to come in this case.
The case, Texas v. U.S., tests the Biden Administration's rescission of the Trump Administration's MPP, under which DHS sent non-citizens to Mexico pending their removal proceedings. The Biden Administration rescinded the program and explained its decision in a June 1 memo. (Here's the DHS MPP info page.)
The court ruled that the memo didn't provide a sufficient justification for rescission under the Administrative Procedure Act. It said that the memo failed to consider the putative benefits of MPP, the costs of revoking MPP, the states' reliance interests in MPP, and any other policies short of termination that would meet its interests. Moreover, the court said that the memo's stated justifications were arbitrary.
The court vacated the memo and ordered the Biden Administration to reinstate MPP, unless and until the Administration could properly justify rescission and demonstrate that it can detain immigrants domestically pending their asylum or deportation proceedings.
(That last bit is in response to the Administration's argument that it lacks sufficient resources to detain all immigrants domestically pending their proceedings--and that's why they parole many of them. The court declined to treat the relative lack of resources as a legal constraint on the Administration's ability to detain, however, and instead focused on the INA's language that DHS "must" detain immigrants. (If Congress tells the Administration that it "must" detain, but only allocates a portion of funding to achieve that requirement, another understanding would be that Congress instructs the Administration that it "must" detain only up to the resources that it allocated.))
Remarkably, the court ordered the Administration to report monthly on border activity in order "[t]o ensure compliance" with its order.
The Administration will undoubtedly seek a stay pending appeal from the Fifth Circuit, and then appeal on the merits. This one's only just begun. Stay tuned.
Friday, August 13, 2021
Judge Dabney Friedrich (D.D.C.) declined to halt the CDC's eviction moratorium in light of an earlier ruling by the D.C. Circuit. The court said that it's "hands are tied," even though "intervening decisions call into question the D.C. Circuit's conclusion that the CDC is likely to succeed on the merits." The court then invited the plaintiffs to appeal, which they certainly will.
The case, Alabama Association of Realtors v. US DHS, challenges the latest version of the CDC's eviction moratorium. Plaintiffs previously challenged an earlier version (which applied nationwide) on the ground that the CDC lacked statutory authority under the Public Health Act. The court vacated the earlier version last May, but stayed the vacatur pending appeal. The D.C. Circuit declined to vacate stay in June. The Supreme Court also declined to vacate the stay, based at least in part on the CDC's representation that it wouldn't further extend the moratorium. (Four justices would've ruled for the plaintiffs outright; a fifth, Justice Kavanaugh, wrote that the CDC needed statutory authority, but he nevertheless voted to keep the stay in place because it was set to expire in just a couple weeks.)
Then the CDC extended the moratorium, but only as to counties with a substantial or high level of community transmission of COVID.
The plaintiffs then went back to the district court and asked it to "enforce the Supreme Court's ruling." Today the district court declined.
The court said that it was bound by the June D.C. Circuit ruling--the "law of the case"--and that nothing in the Supreme Court's ruling undid the D.C. Circuit's ruling. The court noted that "the Sixth Circuit held that Section 361 of the Public Health Act does not authorize the CDC to impose a nationwide eviction moratorium," and that the Eleventh Circuit "also expressed 'doubts' about the CDC's statutory arguments. But it said that these rulings aren't binding; instead, the D.C. Circuit is.
Wednesday, August 11, 2021
Judge Amit Mehta (D.D.C.) ordered former President Trump's accounting firm, Mazars, LLP, to comply with a House Oversight Committee subpoena and turn over certain financial records of former President Trump and Trump businesses. The ruling follows the Supreme Court's 2020 ruling on an earlier version of the subpoena in Trump v. Mazars.
Judge Mehta's order deals a blow to former President Trump and his long-running efforts to conceal his financial records. But even this latest chapter isn't yet the end: the ruling will certainly be appealed.
The case, still captioned Trump v. Mazars, arose when the House Oversight Committee issued a subpoena to Mazars for certain financial documents of then-President Trump and Trump businesses in 2019. Then-President Trump sued to halt the subpoena. The Supreme Court ruled in 2020 that the subpoena for a sitting president's personal financial records raised "weighty" separation-of-powers concerns, and that the lower courts had to take full account of these concerns in ruling on the subpoena. In particular, the Court identified four non-exhaustive "special considerations" to guide that analysis. The Court sent the case back for further consideration in light of its ruling.
Then the Committee issued a lengthy memo on why it needed the requested information (the "Maloney Memo"), and later, after a new Congress convened, re-issued the subpoena (the "Maloney Subpoena"). The Maloney Subpoena is exactly the same as the original subpoena (the "Cummings Subpoena"), but now has the benefit of the lengthy Maloney Memo, justifying the Maloney Subpoena in detail.
That's all background. Now this most recent ruling.
The court first said that it must assess the Maloney Subpoena (not the earlier Cummings Subpoena), along with the Committee's lengthy justification in the Maloney Memo. The court rejected former President Trump's argument that it could only consider the Cummings Subpoena, without the Maloney Memo. The court explained, "Although the reissued subpoena is identical to the Cummings Subpoena in substance, the House reissuance process required the Committee to serve upon Mazars an entirely separate, fresh subpoena, and the Committee did so. Thus, it is the reissued subpoena that Plaintiffs now challenge, not the expired subpoena issued by Chairman Cummings." The court then rejected former President Trump's claim that the Committee issued the Maloney Subpoena for an invalid purpose.
The court went on to assess the Maloney Subpoena against the Mazars factors, dividing the subpoena into three separate parts, or "tracks." Given that the Maloney Subpoena seeks documents of a former president, not a sitting one, the court acknowledged that the separation-of-powers concerns were substantially diminished. It therefore applied a "Mazars lite" test to each track.
First, the court rejected the Committee's subpoena for documents related to the "financial disclosure track," those documents related to former President Trump's financial disclosures under the Ethics in Government Act that contained "numerous apparent discrepancies." The Committee sought these documents in order to shore up financial disclosure requirements. The court said that the Committee failed to explain why it couldn't get the information from other sources (one of the Mazars factors), not just from former President Trump. The court also said that the Committee's need is outweighed by the burdens of the subpoena (another of the Mazars factors). The court explained, "The more Congress can invade the personal sphere of a former President, the greater the leverage Congress would have on a sitting President."
Next, the court upheld the subpoena in part for documents related to the "GSA track," those documents related to former President Trump's lease agreement with the GSA for the Old Post Office Building. The Committee sought this information in order to conduct oversight and consider tightening requirements related to Emoluments Clauses and conflict-of-interest issues in GSA contracting, among other things. The court said that separation-of-powers concerns all but disappeared, because former President Trump entered into the lease before he became president and retained the lease after he left office, and because he's no longer in office. But it also said that the subpoena wasn't tailored to meet the Committee's legislative interests. So the court upheld the subpoena only as to the financial records of former President Trump, Trump Old Post Office LLC, and the Trump Organization. "The remaining entities are not evidently within the scope of the Committee's GSA track.
Finally, the court upheld the subpoena in part for documents related to the "emoluments track," those documents related to potential Foreign Emoluments Clause violations by former President Trump. The court said that the Committee had authority to seek these documents as part of its oversight and enforcement of the Emoluments Clauses, but only for the years 2017 and 2018.
Stay tuned for the appeal.
Thursday, May 6, 2021
The Eleventh Circuit ruled that a plaintiff had standing to sue for monetary damages for a "stigmatic injury" after a municipality failed to add captions to its online videos in violation of the ADA.
One of the panel judges, Judge Newsom, used the routine standing case to write a very un-routine concurrence (starting on page 11), lodging a frontal assault on the injury-in-fact requirement for standing and arguing for an "Article II approach." Here's the gist:
First, in my view, a "Case" exists within the meaning of Article III, and a plaintiff thus has what we have come to call "standing," whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury. Second, however--and it's a considerable "however"--Article II's vesting of the "executive Power" in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large.
Judge Dabney L. Friedrich (D.D.C.) ruled that the CDC lacked authority to issue its nationwide eviction moratorium. At least six other federal courts have ruled on the moratorium; all but two have halted it.
The court ruled that while the agency has some authority under the Public Health Service Act to prevent the spread of communicable diseases, it doesn't have the authority to issue a moratorium on evictions. The court said that an eviction moratorium isn't "similar in nature to" the list of examples of the kinds of actions the CDC may take under the Act.
The court rejected the government's argument that Congress ratified the eviction moratorium, and the CDC's authority to implement it under the Public Health Service Act, in the Consolidated Appropriations Act. The court noted that while the Consolidated Appropriation Act extended the moratorium until January 31, 2021, it said that Congress didn't specifically ratify the CDC's reading of the Public Health Service Act as authorizing the agency to implement the moratorium. It held that "[b]ecause Congress withdrew its support for the CDC Order on January 31, 2021, the order now stands--and falls--on the text of the Public Health Service Act alone." And, as above, that's not enough, according to the court.
The court wholly vacated the moratorium, not, as the government argued, only as to the plaintiffs in this case.
Wednesday, May 5, 2021
Judge Amy Berman Jackson (D.D.C.) ordered the Justice Department to release a memo that contains advice to former Attorney General Barr on his infamous four-page summary of the Mueller Report and his conclusion that evidence in the report didn't support an obstruction-of-justice case against former President Trump. Judge Jackson gave DOJ until May 17 to comply and release the memo, or to file a motion to stay pending appeal.
The case, Citizens for Responsibility and Ethics in Washington v. U.S. DOJ, arose when CREW filed a FOIA request for any records related to consultations between former AG Barr and DOJ's Office of Legal Counsel related to his four-page summary of the Mueller Report and his conclusion that the report didn't contain sufficient evidence to charge Trump. Barr mentioned that he had consulted with OLC in relation to his four-page letter, and his conclusion that its evidence "is not sufficient to establish that the President committed an obstruction-of-justice offense," when he later testified before Congress. (Recall that Barr purported to summarize the Mueller Report in this widely panned letter before the Report's public release. The letter misleadingly said that the Special Counsel "did not draw a conclusion--one way or the other--as to whether" former President Trump committed obstruction of justice. Barr concluded that the Report didn't contain sufficient evidence to charge Trump with obstruction.)
DOJ argued that the OLC advice was protected under FOIA Exemption 5 and the deliberative process and attorney-client privileges. Judge Jackson rejected those claims.
In short, based on an in camera review of the documents, the court recognized that Department officials wrote Barr's four-page letter before and during the time when it wrote the OLC memo. In other words, the OLC memo couldn't have been part of deliberations leading to Barr's letter, and it couldn't have provided legal advice related to Barr's letter, because Department officials drafted the letter before and simultaneously with Barr's letter. To put the finest point on it: the AG and DOJ already decided not to prosecute former President Trump before the Department wrote the OLC memo.
The court sharply criticized Barr and Department officials who provided affidavits, given that the plain evidence contradicted their claims. Here's just a flavor, on the court's analysis of the deliberative process privilege:
And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiffs here was well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency's redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.
The ruling gives the DOJ until May 17 to comply and release the memo, or to appeal.
Tuesday, April 13, 2021
The D.C. Circuit ruled on Friday that a private party can't challenge an Federal Election Commission decision not to enforce election law if the decision was based in any measure on agency discretion. The ruling effectively gives commissioners who successfully oppose enforcement action a get-out-of-judicial-review card simply by invoking discretion as any part of their explanation for not enforcing the law. The ruling also adds to the structural features that have paralyzed the FEC. (The FEC is comprised of six commissions, no more than three of either major political party. But it requires four votes to initiate an enforcement action. Partisan deadlock and quorum issues have created an impotent agency. This ruling only adds to those features, because it allows commissioners who vote against enforcement to insulate their decision simply by mentioning "discretion.")
The case, CREW v. FEC, arose when CREW sued the FEC for deciding not to enforce election law against New Models, a now-defunct non-profit. CREW filed a complaint against New Models for failing to comply with FECA's registration and reporting requirements for "political committees." But the FEC, by a 2-2 vote, decided not to pursue an investigation. The two commissioners who voted against an investigation wrote a 31-page, single-spaced opinion explaining their legal reasons why New Models wasn't a "political committee" under FECA. They added a final sentence, "For these reasons, and in exercise of our prosecutorial discretion, we voted against finding reason to believe that New Models violated the Act . . . ." (The commissioners dropped a footnote to their reference to "prosecutorial discretion" with a brief explanation: "Given the age of the activity and the fact that the organization appears no longer active, proceeding further would not be an appropriate use of Commission resources.")
CREW sued under FECA's provision that authorizes a private suit to challenge an FEC nonenforcement decision if it is "contrary to law." The D.C. Circuit ruled that the court couldn't review the decision, though, because it was "based even in part on prosecutorial discretion."
The court said that the ruling was a simple application of its previous ruling in Commission on Hope. In that case, the court said that under Heckler v. Chaney it couldn't review an FEC nonenforcement decision based on agency discretion. (Discretion formed a much more significant portion of the justification for nonenforcement in Commission on Hope, however.) It also said that FECA doesn't contain any standards for a court to judge an FEC decision based on discretion.
Judge Millett wrote a lengthy dissent, arguing that "the majority opinion creates an easy and automatic 'get out of judicial review free' card for the Federal Election Commission."
Wednesday, March 31, 2021
U.S. Capitol Police Officers James Blassingame and Sidney Hemby sued former President Trump on Tuesday for inciting the January 6 insurrection. The complaint alleges a variety of torts and seeks compensatory and punitive damages.
Representative Bennie Thompson and Representative Eric Swalwell previously filed their own separate complaints against Trump and others, alleging civil-rights violations, a variety of torts, and interference with Congress's count of the electoral college votes.
Whatever other defenses Trump and other defendants may seek to assert, the president's official immunity is unlikely to work. Under Nixon v. Fitzgerald, a president is absolutely immune for civil damages for acts within the "outer perimeter" of the president's official responsibility. But allegations in all three complaints--not to mention the public record--put Trump's actions well outside this "outer perimeter." And the Thompson and Swalwell complaints specifically allege that Trump was acting in his personal capacity (not his official capacity) and for his personal benefit (and not in aid of the president's "constitutional office and functions").
Wednesday, January 13, 2021
Here's a short Q&A on some of the questions surrounding congressional efforts to impeach and disqualify President Trump. (I previously posted a primer on constitutional issues related to last week's insurgency.)
Can the House impeach President Trump again?
Yes. Recall that the House impeached President Trump just last year--for abusing power by pressuring the Ukrainian president to dig up dirt on Joe Biden to boost Trump's chances of reelection, and for obstructing the House investigation into the matter. Still, there's nothing prohibiting the House from impeaching President Trump again. (The House has only impeached two other presidents in our history, Andrew Johnson and Bill Clinton. It only impeached them once. But nothing prohibits a second impeachment.)
What happens if the House impeaches?
Alone, nothing. Remember that impeachment is a two-step process: impeachment in the House, and conviction in the Senate. Impeachment in the House requires a bare majority; conviction in the Senate requires a 2/3 vote. "Impeachment" requires both actions. So a House impeachment alone does nothing . . . except record for history that the House voted that the president committed impeachable offenses. Removal from office and disqualification from future office (see below) require the action of both chambers.
What happens if both chambers act?
Two things could happen. First, Congress (again, upon impeachment by the House and conviction in the Senate) could remove the president from office. That only happens, of course, if the president is still in office. So removal would only follow if Congress acted before President Trump's term ends.
Second, Congress can disqualify the president from holding office in the future. Under past congressional practice, this takes a bare majority in both chambers (and not the 2/3 super-majority in the Senate that's required for removal). (The Constitution itself isn't clear on the vote required for disqualification. But when the Constitution isn't clear, and there's no judicial precedent, we often look to past practice to discern the meaning. Past practice on disqualification says that Congress can disqualify with a bare majority vote in both houses.)
Finally, if both chambers act, Congress sets a precedent that behavior like President Trump's is impeachable, and cause for removal and disqualification. Because of the important role that history and practice play in our constitutional tradition, this kind of precedent would be significant, and could influence the future practices of both the President and Congress.
Can Congress impeach the President after his term ends?
Probably yes. The Constitution doesn't explicitly answer this question. But the House has twice impeached officials after they left office--once in 1797 (a Senator, after he was expelled), and once in 1876 (the Secretary of War, after he left office). These precedents are a good indication that Congress could impeach President Trump after he leaves office. (Again: past practice is a good indicator of meaning when the text is silent or ambiguous, and when there's no judicial precedent.) Moreover, as a practical matter, it only makes sense that Congress could impeach an officer after the officer leaves office. Otherwise, an officer could escape removal by resigning, or committing an impeachable offense near the end of the officer's term; and the officer could entirely escape disqualification (because a vote on disqualification often occurs only after an officer leaves office).
On the other hand, some argue that Congress can only impeach a sitting officer, in short, because only a sitting officer can be removed from office.
Can President Trump pardon himself out of impeachment?
No. The pardon power does not extend to impeachments.
Moreover, President Trump probably cannot pardon himself. (The Constitution doesn't say, and there's some disagreement on this. But the Justice Department has long held the view that the president cannot pardon him- or herself, based on the background constitutional principle that no person should be a judge in their own case.)
Can President Trump sue to stop or undo an impeachment?
No. The Supreme Court has ruled that impeachments are "non-justiciable." It said that the impeachment power belongs exclusively to Congress, and that the courts lack authority to second-guess congressional judgments about impeachment and its processes.
Can Congress disqualify President Trump from future office in some other way?
Yes. The 14th Amendment, Sections 3, says that any person who "engaged in insurrection or rebellion" is disqualified from holding federal and state offices, including the presidency. This would require a bare majority vote in both houses, and Congress could disqualify President Trump under the 14th Amendment after he leaves office. (Note that the current House articles of impeachment reference 14th Amendment disqualification.)
Vice President Mike Pence wrote to House Speaker Nancy Pelosi late yesterday declining to invoke the 25th Amendment against President Trump, writing that he does "not believe that such a course of action is in the best interest of our Nation or consistent with our Constitution."
As to why invocation of the 25th Amendment was not "consistent with our Constitution," Pence wrote,
As you know full well, the 25th Amendment was designed to address Presidential incapacity or disability. . . . Under our Constitution, the 25th Amendment is not a means of punishment or usurpation. Invoking the 25th Amendment in such a manner would set a terrible precedent.
He went on to argue that it'd be a bad idea, too, writing that "now is the time for us to come together, now is the time to heal."
For more on the 25th Amendment, check out this Congressional Research Service report.
Friday, January 8, 2021
Here's a short Q&A on some of the more common constitutional questions related to Wednesday's insurgency:
The Twenty-Fifth Amendment
What is it?
Section 4 of the Twenty-Fifth Amendment provides a four-step process for determining when a President "is unable to discharge the powers and duties of . . . office . . . ." Section 4 comes into play when a sitting President cannot or will not determine for him- or herself that he or she is so unable. (Section 3 provides the process for a President to make this determination for him- or herself, e.g., to temporarily designate him- or herself as unable to discharge the duties when he or she goes in for a medical procedure that may render the President temporarily unable to do the job.) If successful, a Section 4 process would make the Vice President the "Acting President."
How does it work?
Section 4 has four steps:
Step 1: The VP and a majority of the principal officers of the executive departments (the cabinet) send a written declaration of inability to the President Pro Tem of the Senate and the Speaker of the House. (There are 15 executive departments, so a majority is 8. Section 4 alternatively allows "such other body as Congress may by law provide" to serve this role. But there's currently no "such other body.") When this happens, the VP automatically becomes Acting President and assumes the powers of the presidency.
Step 2: The President may then send a letter to these congressional leaders stating that he or she has no disability--in other words, contesting the judgment of the VP and the cabinet. Note that the President isn't required to do this. If the President doesn't do it, the VP continues as Acting President. There's no time limit for the President to submit this transmission.
Step 3: The VP and a majority of the principal officers of the executive departments can send another transmission to the congressional leaders, but must do so within four days of the President's transmission. If so, then the VP remains Acting President. (There is some disagreement about who would have the powers of the presidency during the period between the President's transmission and the VP/cabinet's re-submission. There is good textual and historical evidence that the VP would remain Acting President during this period.)
Step 4: Congress shall assemble within 48 hours to decide the issue; it must make a decision within 21 days (of receipt of the last transmission (in Step 3), or, if not in session, after it's required to assemble). If Congress votes by 2/3 in each chamber that the President is unable to discharge the duties of office, then the VP remains Acting President. "[O]therwise, the President shall resume the powers and duties of his office."
What does it mean for President Trump?
If the VP and cabinet activate Section 4, VP Pence is likely to become the Acting President for the rest of President Trump's term, no matter what President Trump does. That's because the VP would become Acting President after Step 1, and because the VP and the cabinet would almost certainly complete Step 3 (having already committed to Step 1). At that point, Congress has a full 21 days--days in which the VP would be Acting President--which would carry us beyond January 20, the date of President-Elect Biden's inauguration. (Congress could easily drag its feet and avoid a vote until after January 20.)
Here's a fantastic Congressional Research Service report on the Twenty-Fifth Amendment.
What is it?
Impeachment is a two-step process by which Congress can remove a sitting President from office and ban the President from holding future office. According to the Congressional Research Service, "[i]t appears that federal officials who have resigned have still been thought to be susceptible to impeachment and a ban on holding future office." A pardon doesn't work on impeachment. An impeached individual could also be subject to criminal liability.
How does it work?
Impeachment is a two-step process:
Step 1: The House votes to impeach. This requires only a bare majority.
Step 2: The Senate then holds a trial and votes to convict. Removal from office requires a 2/3 vote. But under Senate practice, a bare majority could vote to prevent the President from holding future office.
What does it mean for President Trump?
Congress could remove President Trump from office, or ban him from holding office in the future, or both. Congress could ban President Trump from holding future office, even if he resigns from office first. Congress could dispense with its ordinary impeachment procedures (which take a longer time) and move very quickly, even before January 20. That's because impeachment proceedings are non-justiciable (the courts won't hear challenges to them), and President Trump therefore couldn't challenge an impeachment process in court.
Here's an excellent Congressional Research Service Report on impeachment.
President Trump is free to resign from office at any time. There are no restrictions on this. If he resigns, under Section 1 of the Twenty-Fifth Amendment, "the Vice President shall become President."
What is it?
The President has the power to pardon individuals for federal (but not state) crimes. But the President can pardon for crimes arising from past behavior only; the President cannot pardon for future acts. (But by pardoning for past behavior, the President can insulate individuals from future indictments or convictions.) The pardon power is probably not reviewable in the courts, although an improper exercise of the pardon power could be an impeachable offense.
The Justice Department has long held that a President cannot pardon him- or herself. (The OLC memo is here.) But we've never faced that situation, and we have no court rulings.
There's a question as to whether the President can issue a blanket pardon, or whether the President must identify the specific criminal behavior. This has never been tested.
What does it mean for President Trump?
President Trump cannot pardon himself. If he tries--and attempts to use his self-pardon as a defense in a future federal prosecution--he will likely fail. But President Trump could resign from office, or delegate authority to the VP, and VP Pence (as Acting President) could pardon him. (See the discussion on the Twenty-Fifth Amendment, above.)
VP Pence could not pardon President Trump for state crimes. The pardon power only works for federal offenses.
What is it?
The President enjoys certain immunities from the law by virtue of the President's unique position in our constitutional system. For example, the President is absolutely immune from civil liability for official actions. But the President is not immune from civil lawsuits for behavior prior to coming to office.
The Justice Department has long held that a sitting President is immune from federal criminal prosecution while in office. This is not uncontroversial, however, and it's never been tested. At the same time, DOJ has also long held that a President is not immune from federal criminal prosecution after the President leaves office. (Here's the most recent DOJ/OLC memo on this.)
The Supreme Court ruled just this past summer that a sitting President is not absolutely immune from all state criminal processes. President Trump is not immune from state criminal investigations and more, and he will enjoy no immunity from state criminal indictments or convictions when he leaves office.
What does it mean for President Trump?
President Trump is subject to federal and state criminal indictment and conviction for behavior while in office when he leaves office, and maybe sooner. Traditionally, the DOJ has not pursued criminal charges against a former President. But the Constitution does not forbid this.
A pardon, of course, would insulate President Trump from future federal criminal prosecution.
Wednesday, December 30, 2020
The D.C. Circuit ruled this week that members of a House committee have standing to sue to enforce their statutory right to obtain information from executive agencies, in this case the General Services Administration.
The ruling means that the plaintiff-House members can pursue their claim to get the information, but it does not say that they'll win. In any event, the case is likely to become moot under President Biden, when the administration seems much more likely to comply with the request. (The ruling is likely to embolden minority Republican House members to ask for information from the Biden Administration.)
The case, Maloney v. Murphy, arose when Democratic members of the House Oversight Committee, then in a minority, sought information from the GSA related to the Agency's lease with a Trump corporation for the Old Post Office. The members invoked 5 U.S.C. Sec. 2954, which authorizes seven members of the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee to request and obtain information from any executive agency. The statute functionally allows a minority group of lawmakers on those committees to obtain information from an executive agency, even if the full committee does not seek that same information.
GSA balked, and the members sued. The district court granted the GSA's motion to dismiss for lack of standing, but the D.C. Circuit reversed.
The court said that the plaintiffs suffered a cognizable informational injury--that the GSA deprived them of information to which they were entitled, and that their lawsuit would redress that injury.
The court went on to say that the injury was "personal," and not "institutional," and therefore the individual lawmakers had standing. (A personal injury is a direct harm to a person, or in this case a lawmaker; the harmed individual, even if a lawmaker, has standing to sue. An institutional injury, in contract, is a generalized harm to the institution, in this case the Committee; the Committee would have standing, but not an individual lawmaker.) The court explained:
The Requestors do not assert an injury to institutional powers of functions that "damages all Members of Congress and both Houses of Congress equally." The injury they claim--the denial of information to which they as individual legislators are statutorily entitled--befell them and only them. Section 2954 vested them specifically and particularly with the right to obtain information. The 34 other members of the Committee who never sought the information suffered no deprivation when it was withheld. Neither did the nearly 400 other Members of the House who were not on the Committee suffer any informational injury. Nor was the House (or Senate) itself harmed because the statutory right does not belong to those institutions.
Judge Ginsburg dissented:
The Plaintiff-Members here allege harm to the House rather than to themselves personally. Their theory of injury is that the General Services Administration (GSA), by refusing their request for certain documents, hindered their efforts to oversee the Executive and potentially to pass remedial legislation. The Complaint is clear and consistent on this point: The Plaintiff-Members were harmed through the "impedance of the oversight and legislative responsibilities that have been delegated to them by Congress . . . ."