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 . . . ."
Friday, December 18, 2020
The Supreme Court ruled today that the case challenging President Trump's plan to report reapportionment numbers to Congress without accounting for unauthorized aliens was not ripe for judicial review and that the plaintiffs lacked standing to challenge the plan. The Court said nothing about the merits of the case, although its practical effect allows the President to move forward.
The ruling means that the Commerce Secretary can go ahead and report the numbers of unauthorized aliens along with a total head-count to the President, and that the President can go ahead and report apportionment numbers to Congress based on total numbers minus unauthorized aliens.
This is unprecedented. Apportionment has never discounted for unauthorized aliens.
At the same time, it's not at all clear as a practical matter if or how the President will be able to implement this. And even if he does, the plaintiffs can come back and sue later, when they may meet a more friendly Court. (Justices Kavanaugh and Barrett seemed sympathetic to the plaintiffs' arguments during oral argument on the case. They could join Justices Breyer, Sotomayor, and Kagan to rule against the President.)
The case arose when President Trump issued a memo this summer directing the Secretary of Commerce to report two sets of numbers to the President: (1) a raw census total head count; and (2) the number of unauthorized aliens in the country. President Trump wrote that he'd certify apportionment numbers to Congress based on the total head count minus the number of unauthorized aliens in the country.
This would cause some states (with large populations of unauthorized aliens) to lose representation in Congress. It could also allow some states and local jurisdictions to lose vast amounts of federal funds, which are tied to census numbers.
Some of those states sued, arguing that President Trump's memo violated the Constitution and federal law, both of which mandate apportionment based on "the whole number of persons in each State, excluding Indians not taxed."
The Court ruled that the plaintiffs lacked standing, and that the case wasn't ripe for judicial review. In an unsigned opinion, six justices ruled that the plaintiffs' claimed harms--loss of representation and federal funds--weren't certain enough to justify judicial intervention. "At present, this case is riddled with contingencies and speculation that impede judicial review." The Court noted that the President's memo was contingent ("to the extent practicable," for example), and that it's not even clear that the Secretary can compile the data by the statutory deadline. Moreover, it noted that federal funds may not even be affected: "According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum."
Justice Breyer wrote a sharp and lengthy dissent, joined by Justices Sotomayor and Kagan. He argued that the plaintiffs had standing and that the case was ripe for review under settled Court precedent, and that the President's memo violated the Constitution and federal law.
Saturday, December 12, 2020
The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,
The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.
Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.
The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however.
Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."
The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.
Friday, December 11, 2020
The Supreme Court ruled this week that a Delaware attorney lacked standing to challenge the state's political balancing requirements for seats on its courts. The ruling means that the Court didn't address the underlying merits question, whether the balancing requirements violate the First Amendment. It also didn't break any significant new ground on standing.
The case, Carney v. Adams, involved Delaware's two political balancing requirements for its courts, the "bare majority" requirement and the "major party" requirement. The bare majority requirement says that no more than a bare majority of judges on any of the state's five major courts "shall be of the same political party." The major party requirement says that judges not in the majority on three of the state's courts "shall be of the other major political party."
Delaware attorney James Adams sued, arguing that the provisions violated his First Amendment right to free association. There was just one problem: Adams failed to show that he was harmed by the two requirements. He hadn't applied for a judgeship and been rejected, and he hadn't even stated a determinate intent to apply for a particular judgeship for which he wouldn't qualify; he only said that he'd like to apply for a judgeship at some undefined point in the future--and that the political balancing requirements would prevent him from getting the job. So the Court ruled that he lacked standing.
Justice Breyer wrote for a unanimous Court. Justice Breyer concluded that Adams failed to show that he was "able and ready" to apply for a judgeship based on three considerations:
First, as we have laid out Adams' words "I would apply . . . " stand alone without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.
Second, the context offers Adams no support. It suggests an abstract, generalized grievance, not an actual desire to become a judge. . . .
Third, if we were to hold that Adams' few words of general intent--without more and against all contrary evidence--were sufficient here to show an "injury in fact," we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions . . . .
Justice Breyer quoted Justice Powell in United States v. Richardson, reminding us why standing is an important separation-of-powers concern:
[Justice Powell] found it "inescapable" that to find standing based upon [a general interest, common to all members of the public] "would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." He added that "[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.
Justice Sotomayor concurred. She wrote to point out that the two requirements were very different and might very well require two different kinds of analysis, if and when this issue comes back to the courts. She also urged lower courts to certify the question of the severability of the two provisions to the state courts.