Thursday, April 18, 2019

Mueller Affirms that President is Not Above the Law, Even for Official Actions

Among its many findings and conclusions, Special Counsel Robert Mueller's report concluded that the Constitution does not prohibit the application of federal obstruction-of-justice laws to the president, even when the president is executing Article II authorities (by terminating FBI Director Comey or by closing an investigation (as an act of prosecutorial discretion)).

In other words: The president is not above the law, or at least this kind of law, simply by virtue of acting as the president.

The conclusion is at odds with claims in a June 23, 2017, letter from President Trump's personal attorney to the the Special Counsel's Office.

The report does not make "a traditional prosecutorial judgment," however, citing "difficult issues that would need to be resolved." These "difficult issues" probably include the hotly disputed question whether a sitting president can be prosecuted. If so, the report may provide an at-least-theoretical path for post-presidential prosecution of Trump.

Using separation-of-powers analysis, Mueller's report, vol. 2, starting at page 168, balances (1) the effect of obstruction-of-justice statutes on the president's ability to perform his Article II responsibilities, (2) whether the obstruction-of-justice statutes are justified by "an overriding need to promote objectives within the constitutional authority of Congress," and (3) "whether the separation-of-powers doctrine permits Congress to take action within its constitutional authority notwithstanding the potential impact on Article II functions."

As to (1), the report says that obstruction-of-justice statutes applied to the president won't "seriously hinder the President's performance of his duties." That's because these statutes "do not aggrandize power in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct only when it is taken with the 'corrupt' intent to obstruct justice." "The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests."

As to (2), the report says that Congress acts well within its powers when it outlaws obstruction of justice in order "to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials."

As to (3), the report says that "[a] general ban on corrupt action does not unduly intrude on the President's responsibility to 'take Care that the Laws be faithfully executed," because "the concept of 'faithful execution' connotes the use of power in the interest of the public, not in the office holder's personal interests."

In sum, contrary to the position taken by the President's counsel, we conclude that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction of justice statutes would not impermissibly burden the President's performance of his Article II functions to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person--including the President--accords with the fundamental principle of our government that "[n]o [person] in this country is so high that he is above the law.

April 18, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, April 17, 2019

Trump Vetos WPA Resolution on Yemen

As expected, President Trump yesterday vetoed Congress's War Powers Act resolution calling for the removal of U.S. armed forces from hostilities in Yemen that haven't been authorized by Congress. We posted here, with additional links and resources, when the House passed it.

The president's veto message mostly objected to the resolution based on policy. But it contained some constitutional complaints, too:

Since 2015, the United States has provided limited support to member countries of the Saudi-led coalition, including intelligence sharing, logistics support, and, until recently, in-flight refueling of non-United States aircraft. All of this support is consistent with the applicable Arms Export Control Act authorities, statutory authorities that permit the Department of Defense to provide logistics support to foreign countries, and the President's constitutional power as Commander in Chief. . . .

S.J. Res. 7 is also dangerous. The Congress should not seek to prohibit certain tactical operations, such as in-flight refueling, or require military engagements to adhere to arbitrary timelines. Doing so would interfere with the President's constitutional authority as Commander in Chief of the Armed Forces, and could endanger our service members by impairing their ability to efficiently and effectively conduct military engagements and to withdraw in an orderly manner at the appropriate time.

April 17, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0)

Tuesday, April 9, 2019

Trump's Appointment of Acting DHS Secretary Violates DHS Succession Act UPDATE

President Trump announced on Sunday his appointment of Customs and Border Patrol Director Kevin McAleenan as acting DHS Secretary after Secretary Kirstjen Nielsen resigned.

There's just one problem: The move violates the clear language of the DHS succession act.

House Homeland Security Committee Chair Bennie G. Thompson alerted the president to the problem in this letter yesterday. Quoting the provision, Thompson wrote:

Notwithstanding chapter 33 of title 5, United States Code, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.

The Under Secretary for Management is Claire M. Grady. She served in that position since August 2017. 

Thompson's letter "strongly urges" President Trump to follow the law, and "to nominate a suitable candidate for Secretary as expeditiously as possible."

This isn't President Trump's first legal wrangle with Congress over his appointment authority for positions within the executive branch. We posted most recently on problems with Matthew Whitaker's appointment as acting AG here; we posted on Mick Mulvaney's appointment as CFPB head here.

UPDATE: Claire Grady resigned late Tuesday, clearing the way for Trump's appointment.

April 9, 2019 in Appointment and Removal Powers, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Saturday, April 6, 2019

Can Congress Get the President's Tax Returns?

House Ways and Means Committee Chairman Richard Neal this week formally asked the IRS for President Trump's tax returns for tax years 2013 through 2018, arguing that statutory authority and the Committee's legislative and oversight responsibilities require the IRS to turn over these returns. William S. Consovoy, President Trump's private lawyer, responded that "Chairman Neal cannot legally request--and the IRS cannot legally divulge--this information."

So who's right? In short, probably Neal. And the Internal Revenue Code may authorize even wider distribution--to the full House and Senate (and public). But given the time it'll take to work through the courts, it all might not matter.

Start with the statutory text. Section 6103(f)(1) of the Internal Revenue Code provides that, upon written request of the Chair of the House Ways and Means Committee, Joint Committee on Taxation, or Senate Finance Committee, the Treasury Secretary "shall furnish" the requested tax returns or return information to the relevant committee. But Section 6103(f)(1) information can only be provided when the requesting committee is "in closed executive session." (See more below on this.)

That plain language would seem to answer it, but there may be more.

As a general matter, Congress can only seek information to further a "legislative purpose" or a valid oversight function, or another constitutionally-granted function (like impeachment). The standard here is quite loose; the courts have only restricted Congress from seeking information when it moves to "expose for the sake of exposure." That's why Chairman Neal wrote in his letter the "legislative purpose" of his request:

Consistent with its authority, the Committee is considering legislative proposals and conducting oversight related to our Federal tax laws, including, but not limited to, the extent to which the IRS audits and enforces the Federal tax laws against a President. Under the Internal Revenue Manual, individual income tax returns of a President are subject to mandatory examination, but this practice is IRS policy and not codified in the Federal tax laws. It is necessary for the Committee to determine the scope of any such examination and whether it includes a review of underlying business activities required to be reported on the individual income tax return.

Consovoy counters that Neal's true purpose is pure politics. He points to the timing of the request, the political pressure on House Democrats to press for release of the returns, and the scope of the request in relation to Neal's stated purpose ("[W]hy is he seeking tax returns and return information covering the four years before President Trump took office? Why is he not requesting information about the audits before President Trump took office? Why is he not requesting information about audits of previous Presidents?")

But it's unlikely that the courts would look behind the stated purposes of Neal's request to make inferences about the timing or the politics. And while the courts haven't specified a particular degree of scrutiny for determining the scope of congressional "legislative purpose" or oversight authority (beyond the loose standards above), it's highly unlikely that they'd adopt some form of heightened scrutiny that would require a congressional inquiry to be more precisely tailored to its purposes (as suggested by Consovoy's series of questions about the scope of the inquiry). If so, the courts could derail almost any congressional inquiry based on its scope. After all, when, if ever, is a congressional inquiry precisely tailored to meet its purposes? They're almost always over- or under-inclusive.

Prof. Andy Grewal makes better arguments about Congress's legislative purposes here and here. In the end, it'll come down to the deference that courts are wiling to give Congress in fashioning its own requests to serve its own legislative purposes. My own money is on greater deference to Congress. Why? Any other result would put nearly any congressional request for information on the chopping block.

Consovoy also argues that the request violates President Trump's privacy interests. This could be an important factor, to be sure, but as the Congressional Research Service explains in a recent analysis, this is a balancing test, and lower courts have upheld mandatory disclosure laws aimed at politicians in the interests of deterring corruption and conflicts of interest, and enhancing public confidence in government integrity. Moreover, there's nothing special about President Trump's privacy (as opposed to anybody else's privacy). (Indeed, if anything, he may have less privacy, given that he voluntarily assumed his public role, and given that every other president has released tax returns.) So if the IRC validly requires the Commissioner to turn over tax returns of anyone, then it also requires the Commissioner to turn over tax returns of President Trump. (Of course, if that provision is an unconstitutional violation of privacy for anyone, then it's probably an unconstitutional violation of privacy for President Trump, too. But that's almost surely not the case.)

Consovoy also vaguely refers to the separation of powers as a constraint against Neal's request. Best I can tell, the argument is that the executive branch, not Congress, has enforcement authority for the Internal Revenue Code, and that Neal's request would interfere with ongoing IRS (executive branch) "examination" of the returns. (Consovoy also cites due process as a reason not to comply with Neal's request.) But there's nothing that says Congress can't engage in lawmaking or oversight when the administration is also looking into a matter. Indeed, it does it all the time. It'd be a separation-of-powers problem if Congress couldn't do this. (Same for due process. If it were a due process violation for Congress to consider legislation or engage in oversight in a matter just because the executive branch is engaged in enforcement, Congress would be seriously constrained in what it could do. And the executive could control and preempt what Congress could do, simply by opening an enforcement action.)

Finally, Consovoy argues that Neal's request is retaliation for political speech in violation of the First Amendment. This goes to Consovoy's larger this-is-all-politics point, and, without more, probably has little traction. (If it were otherwise, the House could engage in nearly no oversight of the Trump Administration.)

The CRS report goes a step further and says that Neal's Committee could probably re-release the tax returns to the full House. That's because Section 6103(f) goes on to say that "[a]ny return or return information obtained by or on behalf of such committee pursuant to the provisions of this subsection may be submitted by the committee to the Senate or the House of Representatives, or both." Importantly, unlike the limitation on Section 6103(f)(1), there is no "executive session" limitation on this re-release. (The "legislative purpose" requirement would probably still apply. But if the Committee satisfied it for its request, then the re-release to the full House would probably also satisfy it.) If, pursuant to this section, a member read the returns on the House or Senate floor, or submitted them for inclusion in the Congressional Record, their conduct would probably be protected by the Speech or Debate Clause.

Still, the whole question could well be academic. By the time this all works its way through the courts, President Trump may no longer be in office.

April 6, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, April 4, 2019

House Passes WPA Resolution Ending US Support for Yemen War, Sends to White House (for likely veto)

The House today passed a joint resolution under the War Powers Act calling for the removal of U.S. armed forces from hostilities in Yemen that haven't been authorized by Congress. The Senate previously passed the measure.

The House's approval marks the first time that both chambers have approved a resolution under the WPA. President Trump says he'll veto it.

Here's the text of the resolution. Here's a Congressional Research Service report on the history and uses of the WPA, updated just last month.

Section 5(c) of the WPA (50 U.S.C. Sec. 1544(c)) says that "at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs."

Under the resolution passed today,

Congress hereby directs the President to remove United States Armed Forces from hostilities in or affecting the Republic of Yemen, except United States Armed Forces engaged in operations directed at al Qaeda or associated forces, by not later than the date that is 30 days after the date of the enactment of this joint resolution . . . and unless and until a declaration of war or specific authorization for such use of United States Armed Forces has been enacted. For purposes of this resolution, in this section, the term "hostilities" includes in-flight refueling of non-United States aircraft conducting missions as part of the ongoing civil war in Yemen.

That last bit is an acknowledgment that there's some dispute between Congress and the White House as to what constitutes "hostilities," and an effort to clarify. The CRS report talks a little about this starting on page 61.

 

 

April 4, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0)

Thursday, March 28, 2019

Court Strikes Fed's Approval of States' Medicaid Work Requirements (again, and again)

Judge James E. Boasberg (D.D.C.) ruled in two separate cases that the Department of Health and Human Services's approval of work requirements for Medicaid by Arkansas and Kentucky violated the Administrative Procedure Act. The rulings send the cases back to HHS for further consideration of the requirements.

The rulings are a victory for opponents of Medicaid work requirements--at least for now. It is possible that the states and HHS on remand could come up with better reasons for imposing the requirements (reasons more consistent with the purposes of the Medicaid program, that is), or that Congress could change the Medicaid program to authorize work requirements. But barring some more Medicaid-consistent reason for the requirements (or a congressional change, which seems unlikely, at best), it doesn't look like this court will approve any HHS authorization for these states' work requirements.

Just to be clear: the ruling does not halt all work requirements, though. It just says that HHS has to reconsider its approval of work requirements for these two states. The Trump Administration has approved eight states for work requirements, and seven other states are in the pipeline.

One ruling says that HHS's approval of Arkansas's work-requirement "demonstration project" violated the APA, because HHS failed to consider that the requirement would lead a substantial number of Arkansas residents to be disenrolled from Medicaid. That's a problem, because the core purpose of Medicaid is to "furnish medical assistance" to those who cannot afford it. If the work requirement cuts recipients off, then, said the court, it fails to advance the core purpose of the Medicaid program. And because HHS didn't consider that in approving the project, HHS's approval was arbitrary and capricious in violation of the APA.

The court's reasoning in the Arkansas case follows its same reasoning in the Kentucky case from last summer. The court sent the Kentucky case back to HHS for further consideration, and the second recent ruling deals with HHS's approval of Kentucky's work requirement after reconsideration.

In that second case, round 2 of the Kentucky challenge, HHS advanced a new argument on remand: If Kentucky's work requirement isn't approved, then Kentucky would have to un-expand its Medicaid expansion (under the Affordable Care Act) in order to ensure that its Medicaid program remained viable. The un-expansion would result in even more recipients being thrown off Medicaid than the work requirement. In other words, Kentucky threatened to un-expand Medicaid (and cut even more people off) if HHS didn't approve the work requirement.

The court had none of it: "The Court cannot concur that the Medicaid Act leaves the Secretary so unconstrained, nor that the states are so armed to refashion the program Congress designed in any way they choose." The court sent Kentucky's request back to HHS for reconsideration, again.

Next step in both cases: HHS reconsideration, yet again. In the meantime, the states can't impose their proposed work requirements.

March 28, 2019 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, March 18, 2019

AG Barr Invokes States Secrets Privileges in Twitter Suit

Attorney General Barr invoked the state secrets privilege to protect material in Twitter's suit against the Justice Department for forbidding it from publishing information on National Security Letters and  surveillance orders that it received from the government. 

The case, Twitter v. Barr, arose when Twitter sought to publish a Transparency Report describing the amount of national security legal process that the firm received in the second half of 2013. Twitter sought to publish this information because it said that the government wasn't completely forthcoming in its public comments about the extent of national security legal process served on it. DOJ declined Twitter's request to publish the information, citing national security concerns, and Twitter sued under the First Amendment. Here's Twitter's Second Amended Complaint.

DOJ now asserts the state secrets privilege in order to protect certain information in the pending case. But there are two things that make the assertion a little unusual. First, DOJ asserts the privilege not against the Transparency Report itself or the information contained in it, but instead against a confidential submission (the "Steinbach Declaration") that explains why Twitter's request to publish this information could harm national security. In other words, DOJ says that the explanation why the underlying information could harm national security itself could harm national security. 

Next, Twitter's attorney now has a security clearance to view the material, yet DOJ argues that the privilege should still protect the material--even from Twitter's security-cleared attorney. (DOJ's position has been that the court could review material in camera and ex parte and make a determination as to whether it could come in.) In fact, much of the government's submission is dedicated to arguing why privileged material can't be released to a security-cleared plaintiff's attorney. (In short: It would increase the risk of disclosure.)

The government argues that the privileged material is such an important part of Twitter's suit that, without it, the court must dismiss the case.

DOJ cites four categories of privilege-protected classified national security information that appear in the Steinbach Declaration: (1) information regarding national security legal process that has been served on Twitter; (2) information regarding how adversaries may seek to exploit information reflecting the government's use of national security legal process; (3) information regarding the government's investigative and intelligence collection capabilities; and (4) information concerning the FBI's investigation of adversaries and awareness of their activities.

The government's submission is supported by declarations of AG Barr and Acting Executive Assistant Director of the National Security Branch of the FBI Michael McGarrity. The government separately submitted a confidential version of McGarrity's declaration.

Importantly, AG Barr's declaration draws on the Attorney General's Policies and Procedures Governing Invocation of the State Secrets Privilege, adopted in the Obama Administration as a response to the widely regarded overly aggressive assertions of the privilege during the Bush Administration. AG Barr's references to this document suggest that the current DOJ will respect the principles stated in it. 

March 18, 2019 in Cases and Case Materials, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0)

Tuesday, February 26, 2019

D.C. Circuit Rebuffs Challenge to Mueller's Appointment

The D.C. Circuit ruled in In re: Grand Jury Investigation that DAG Rosenstein's appointment of Robert Mueller as Special Counsel did not violate the Appointments Clause. The ruling reaffirms Mueller's authority as Special Counsel and means that investigation target Andrew Miller will have to comply with grand jury subpoenas issued by Mueller.

We posted previously on the case here. We posted on Paul Manafort's similar case here, and another one here. We posted on yet another similar case here. We posted on Mueller's appointment regs and letter here.

The court held that the Special Counsel is an "inferior officer" (and not a "principal officer") under the Appointments Clause, and therefore need not be nominated by the President with the advice and consent of the Senate. (If the Special Counsel were a principal officer, as Miller argued, the Appointments Clause would have required nomination by the President with advice and consent of the Senate. Because Mueller wasn't appointed this way, his appointment would have violated the Clause.) The court noted that the AG exerts near total control over the Special Counsel, notwithstanding the independence built into the Special Counsel regulatory scheme (the good-cause firing requirement), because ultimately the AG could simply revoke the Special Counsel regs and eliminate the office. (The court also noted that Deputy AG Rosenstein could have amended Mueller's appointment letter to do away with the regulatory independence that the office enjoys.) (The fact that the Special Counsel is a creation of DOJ regulations distinguishes this case on this point from Morrison v. Olsen, where the Independent Counsel was a creature of the Ethics in Government Act.)

The court held moreover that Supreme Court and circuit precedent and the AG's broad statutory power to appoint attorneys in the DOJ all say that the AG (or acting AG, here the DAG) had clear authority to appoint a Special Counsel--even one from outside the ranks of the Department. The court pointed to its own ruling in Sealed Case, involving the Office of Independent Counsel for Iran/Contra: "[T]his court assumed that the independent counsel did not already hold a position inside the Department when it held that the Attorney General's appointment of him to the Office of Independent Counsel: Iran/Contra was valid. That analysis applies equally to the facts of the instant case."

Finally, the court ruled that DAG Rosenstein sat in the seat of the AG for the purpose of Mueller's appointment--and therefore Mueller, as an inferior officer, was properly appointed by the head of an agency under the Appointments Clause. The court said that AG Sessions's recusal meant that he was "disabled" under the DOJ line-of-succession act for the purpose of appointing a Special Counsel, and that DAG Rosenstein validly stood in his shoes for that limited purpose.

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

Monday, February 25, 2019

District Court Denies Preliminary Injunction Against Agency Bump Stock Ban

Judge Dabney L. Friedrich (D.D.C.) denied the plaintiffs' motion for a preliminary injunction in their challenge to ATF's new rule banning bump-stocks. The ruling in Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives means that the ban can go into effect as the case moves forward; it also telegraphs that the plaintiffs don't have a strong legal case, or really any legal case, against the rule.

We posted on the complaint here, with some background. (The ATF rule defines a standard bump stock as a "machinegun" under the National Firearms Act. Under the rule, effective March 26, 2019, current possessors of bump stocks must either destroy them or abandon them at an ATF office.) 

Judge Friedrich ruled that the plaintiffs were unlikely to succeed on the merits of their claims. In particular, the court held that the NFA contained ambiguous terms (key parts of the definition of "machinegun," "single function of the trigger" and "automatically," are not separately defined), and under Chevron the ATF could define "machinegun" for itself. Moreover, the court said that the ATF didn't violate any procedure under the Administrative Procedure Act in adopting the reg. The court held that the plaintiffs' Takings Clause challenge should await future government compensation, instead of a preliminary injunction. And the court rejected the plaintiffs' statutory and constitutional challenges to Acting AG Whitaker's appointment:

The plain text and structure of [the AG Act and the Federal Vacancies Reform Act], however, demonstrate that they were intended to coexist: the AG Act provides a line of succession, and the FVRA gives the President discretion to depart from that line, subject to certain limitations met here.

As a constitutional matter, the plaintiffs argue that the Appointments Clause generally requires an acting principal officer to be either the principal officer's first assistant or appointed by the President with the advice and consent of the Senate. But that theory is foreclosed by Supreme Court precedent and historical practice, both of which have long approved temporary service by non-Senate confirmed officials, irrespective of their status as first assistants.

Separately, the plaintiffs argue that the Appointments Clause at a minimum requires the role of an acting principal officer to be filled by an inferior officer and not a mere employee. . . . Whitaker's designation under the FVRA was a Presidential appointment. And if the temporary nature of Whitaker's service prevented him from becoming an officer, then the President was not constitutionally obligated to appoint him at all. 

February 25, 2019 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers, Takings Clause | Permalink | Comments (0)

Thursday, February 21, 2019

D.C. Circuit Says Palestinians' Genocide Claims Against Americans Can Move Forward

The D.C. Circuit ruled in al-Tamimi v. Adelson that claims by Palestinians that pro-Israeli American individuals and entities conspired to support genocide in disputed territories does not present a non-justiciable political question. The court remanded the case so that it can move forward.

The case involves Palestinian nationals' and Palestinian-Americans' claims that certain pro-Israeli American individuals and organizations funneled money to Israeli settlements, which then used the funds to train a militia of Israeli settlers to kill Palestinians and confiscate their property. In particular, the plaintiffs alleged that some or all of the defendants (1) engaged in civil conspiracy to rid the disputed territory of all Palestinians, (2) committed or sponsored genocide and other war crimes, (3) aided and abetted the commission of genocide and other war crimes, and (4) trespassed on Palestinian property. The plaintiffs brought their claims under the Alien Tort Statute and the Torture Victims Protection Act.

The district court held that the case raised non-justiciable political questions and dismissed the complaint.

The D.C. Circuit reversed. The court said that the plaintiffs' complaint reduced to two questions for the court: (1) Who has sovereignty over the disputed territory?; and (2) Are Israeli settlers committing genocide? The court ruled that the first question raised a political question, because it "plainly implicates foreign policy and thus is reserved to the political branches." But it ruled that the second question didn't:

An ATS claim, then, incorporates the law of nations. And it is well settled that genocide violates the law of nations. Genocide has a legal definition. Thus, the ATS--by incorporating the law of nations and the definitions included therein--provides a judicially manageable standard to determine whether Israeli settlers are committing genocide. . . . We are well able, however, to apply the standards enunciated by the Supreme Court to the facts of this case. . . .

In light of the statutory grounds of plaintiffs' claims coupled with Zivotofsky I's muteness regarding Baker's four prudential factors, we believe that whether Israeli settlers are committing genocide is not a jurisdiction-stripping political question. Accordingly, although the question who has sovereignty over the disputed territory does present a "hands-off" political question, the question whether Israeli settlers are committing genocide does not.

The court held that the first question was extricable from the rest of the case, and therefore the lower court could move forward on the second question. (The second question doesn't require resolution of sovereignty over the disputed territories; it only asks whether Israeli settlers are committing genocide in the disputed territories.)

February 21, 2019 in Cases and Case Materials, Courts and Judging, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Wednesday, February 20, 2019

Check it Out: Bagley on ACA Cost-Sharing at the Court of Federal Claims

Check out Nick Bagley's two-part series at Take Care on the cases coming out of the Court of Federal Claims that say that the government has to pay up its cost-sharing obligation to insurers on the Affordable Care Act exchanges--even though Congress didn't appropriate funds to do so.

The short version: Three different judges have now ruled that the ACA created an obligation on the part of the government to make the cost-sharing payments to insurers on the exchange; that Congress's refusal to appropriate funds (without more) doesn't change that obligation; and that the obligation is now enforceable in court (under the Tucker Act).

The rulings could mean that the government owes insurers about $12 billion a year.

The rulings may seem in tension with Judge Collyer's (D.D.C.) ruling that President Obama lacked authority to make cost-sharing payments without a congressional appropriation. But they're not: These cases say that the government created an obligation in the ACA, and that it must now make good on that obligation, one way or another. Congress's refusal to appropriate money in the particular cost-sharing line item (which was the basis of Judge Collyer's ruling) only means that Congress has to either fund that line or find a new source to pay the insurers. (The Court of Federal Claims notes that judgments from that court come from the Judgment Fund, a permanent, indefinite appropriation to pay judgments against the United States. So if the rulings stick, Congress wouldn't have to do anything.)

As to that second step---that Congress's refusal to appropriate funds doesn't change the underlying obligation--here's how one judge explained it:

Here, Congress has had ample opportunity to modify, suspend, or eliminate the statutory obligation to make cost-sharing reduction payments but has not done so. . . . Congress has never enacted any such appropriation riders with respect to cost-sharing reduction payments, even when cost-sharing reduction payments were being made--during both the Obama and Trump administrations--from the permanent appropriation for tax credits . . . . Thus, the congressional inaction in this case may be interpreted contrary to defendant's contention, as a decision not to suspend or terminate the government's cost-sharing reduction payment obligation. 

In short, Congress's failure to appropriate funds to make cost-sharing reduction payments through annual appropriations acts or otherwise does not reflect a congressional intent to foreclose, either temporarily or permanently, the government's liability to make those payments.

Now the interesting question is whether the insurers' mitigation efforts (through "silver loading") mean that the government doesn't have to pay, or at least doesn't have to pay as much. Check out Bagley on this.

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

Tuesday, February 19, 2019

States Sue to Stop Trump's "Emergency" Wall

Sixteen states filed suit in the Northern District of California to halt President Trump's emergency action to reprogram federal funds to build the wall. The lawsuit follows an earlier suit filed by Public Citizen, and a third one filed by environmental groups. (Both of those are in the D.C. District.)

The suits all raise similar claims (there is no "emergency" under the National Emergencies Act, and, even if there were, it doesn't unlock the authorities that President Trump is using to reprogram funds, and other cited authorities are unavailable) and ask for similar relief (a declaration that President Trump's action is unlawful, and an injunction to halt it). 

In addition to declaring an emergency under the NEA, President Trump identified three sources of funds for reprogramming. First, 10 U.S.C. Sec. 2808 allows the Secretary of Defense to "undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces." (Section 2808 funds are only available upon the President's declaration of an emergency under the NEA, so the President's emergency declaration "unlocks" those funds.) Second, 10 U.S.C. Sec. 284 authorizes the Secretary of Defense to support certain counterdrug actions on the request of another department or agency or a state or local official, including "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." (Section 284 allows the Secretary of Defense to reprogram funds without an emergency declaration under the NEA.) Finally, 31 U.S.C. Sec. 9705 provides that after reserves and required transfers, the Treasury Forfeiture Fund's "unobligated balances . . . shall be available to the Secretary . . . for obligation or expenditure in connection with the law enforcement activities of any Federal agency. . . ." (Section 9705 also allows action without a presidential emergency declaration.) (The proclamation also invokes the Ready Reserve provision, allowing the Secretary of Defense, upon the President's declaration of an emergency, to call up "any unit, and any member not assigned to a unit to serve as a unit . . . for not more than 24 months.")

According to the White House Fact Sheet, President Trump's action authorizes reprogramming of funds (1) from the Treasury Forfeiture Fund (Section 9705, about $601 million), (2) counterdrug activities (Section 284, up to $2.5 billion), (3) and military construction (Section 2808, up to $3.6 billion). Importantly, "[t]hese funding sources will be used sequentially and as needed."

The states argue first that there is no emergency under the NEA, and that President Trump therefore lacked authority to declare one. The complaint details the ton of evidence, much from the government itself, on illegal immigration across the southern border, crime by illegal immigrants, and drugs that cross the southern border and argues that this simply doesn't add up to an NEA "emergency."

The states claim that even if there is an emergency, the President can't unlock federal funds under Section 2808. That's because building the wall doesn't "require[] use of the armed forces." Moreover, the President can't reprogram counterdrug money under Section 284, because "the proposed border wall will not assist in blocking 'drug smuggling corridors.'" Finally, the President can't tap Treasury Forfeiture Funds, because the statutory criteria under that statute aren't satisfied. 

The states also argue that the administration violated the National Environmental Protection Act, because it failed to prepare an Environmental Impact Assessment for the wall. 

The states claim that the President's actions violate the separation of powers, encroach upon Congress's spending power, and violate the relevant statutes.

As to standing, the states argue that they'll lose federal funds and the resulting economic activity when the administration reprograms money already allocated to other projects:

If the Administration were to use the funding sources identified in the Executive Actions, Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States. The redirection of funding from authorized military construction projects located in Plaintiff States will cause damage to their economies. Plaintiff States will face harm to their proprietary interests by the diversion of funding from military construction projects for the States' national guard units. And the construction of a wall along California's and New Mexico's southern borders will cause irreparable environmental damage to those States' natural resources.

 

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

Monday, February 18, 2019

First Circuit Rules Puerto Rican Debt Restructuring Board Unconstitutional

The First Circuit ruled last week that the congressionally created Board to oversee the restructuring of Puerto Rico's debt was constituted in violation of the Appointments Clause. The court, however, stopped short of halting the Board's federal lawsuit to initiate debt adjustment proceedings on behalf of Puerto Rico, giving the government 90 days to cure the appointments defect.

The ruling in Aurelius Investment v. Commonwealth of Puerto Rico puts the ball in the government's court to get the Board members properly appointed before the debt readjustment proceeding can move forward.

The case involves the Financial Oversight Management Board created under the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"). Congress created the Board to provide independent supervision and control over Puerto Rico's financial affairs and to help the Island "achieve fiscal responsibility and access to capital markets." Under the Act, Board members are appointed by the President from a slate of candidates created by congressional leadership. (If the President doesn't select a member from one of these lists, the Senate has to confirm the President's nominee. But current Board members all came from a list, without Senate confirmation.)

The Board filed for debt readjustment on behalf of Puerto Rico. Debt-holders sought to dismiss the suit, arguing that the Board lacked authority to file, because Board members weren't appointed pursuant to the Appointments Clause. The Board responded that Congress had authority to constitute the Board this way under the Territorial Clause.

The First Circuit ruled against the Board. The court first acknowledged that the Territorial Clause gives Congress broad authority over U.S. territories, but rejected the argument that the the Clause is so powerful as to allow Congress to bypass the Appointments Clause. The court applied the specific-governs-the-general canon and held that the specific Appointments Clause prevails over the more general Territorial Clause. Moreover, the court said that the Territorial Clause doesn't allow Congress to override the requirement of other structural provisions, like presentment (under the Presentment Clause); so, too, it it doesn't allow Congress to override the requirements of the Appointments Clause.

The court also rejected the claim that the nondelegation doctrine, which operates more flexibly in territories (allowing Congress wider berth to delegate lawmaking authority), gives Congress room to bypass the Appointments Clause. Moreover, the court rejected arguments based on congressional control over the D.C. courts, and declined to read the Insular Cases as creating an Appointments Clause-free-zone in Puerto Rico.

As to the Appointments Clause itself, the court ruled that Board members are "officers" and therefore subject to the Clause, because the positions are "continuing," the incumbent exercises significant authority, and that authority is exercised pursuant to the laws of the United States. On this last point, the court noted that "[e]ssentially everything [Board members] do is pursuant to federal law." The court distinguished high-level Puerto Rican officials who are elected by Puerto Ricans, even though their ultimate authority traces to Congress. "So the elected Governor's power ultimately depends on the continuation of a federal grant. But that fact alone does not make the laws of Puerto Rico the laws of the United States, else every claim brought under Puerto Rico's laws would pose a federal question."

Finally, the court held that Board members are "principal" officers, because, under Edmond, "[t]hey are answerable to and removable only by the President and are not directed or supervised by others who were appointed by the President with Senate confirmation." As such, they must be nominated by the President, with advice and consent of the Senate.

The court declined to dismiss the Board's Title III petitions, however, because "[a]t a minimum, dismissing the Title III petitions and nullifying the Board's years of work will cancel out any progress made towards PROMESA's aim of helping Puerto Rico 'achieve fiscal responsibility and access to the capital markets.'" Moreover, the court stayed its ruling for 90 days to give the government time for Senate confirmation.

February 18, 2019 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, February 16, 2019

Public Citizen Sues Trump Over "Emergency" Wall Action

Public Citizen and the Frontiera Audubon Society sued President Trump for declaratory and injunctive relief yesterday over the president's declaration of a national emergency in order to reallocate funds to build the wall. The lawsuit, filed in the District of Columbia, is the first of (undoubtedly) many.

The lawsuit, Alvarez v. Trump, alleges that President Trump unlawfully invoked the National Emergencies Act because there is, in fact, no emergency, and that he unlawfully reallocated funding from Defense Department construction projects and drug interdiction efforts to build the wall. The complaint details the government's now well known statistics about immigration at the Southern border, and related matters, and quotes from President Trump's press conference yesterday: "I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster"--a statement seemingly at odds with an "emergency." (But remember that the Supreme Court, in Trump v. Hawaii, upheld the travel ban under the President's authority to suspend entry of aliens if entry "would be detrimental to the interests of the United States," under the INA. In doing so, the Court managed to disregard so much of what President Trump actually said about the travel ban--which had nothing to do with "the interests of the United States." This suggests that the Supreme Court will be quite deferential to the President when the wall case gets to the high Court.)

The complaint alleges that the President violated the separation of powers by encroaching on Congress's appropriations power. In short: Congress only appropriated $1.35 billion for the wall; President Trump invoked the NEA to reallocate funds from other pots, even though there was no emergency; in so reallocating appropriated funds, President Trump encroached on Congress's power of the purse.

The complaint does not allege that the NEA's definition of "emergency" delegates too much lawmaking authority to the executive in violation of the nondelegation doctrine.

The plaintiffs include landowners along the border, who have been told that the government would use their land to build a wall, if it got the money to do so.

February 16, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, February 12, 2019

Absent "Emergency," Can Trump Shift Money for the Wall?

In a word: No. At least not without specific congressional authorization.

Remember that President Obama tried a similar move with the cost-sharing reduction (CSR) payments to insurance companies under the Affordable Care Act. The CSR was designed to reimburse insurance companies for keeping costs low for certain purchasers on the exchanges. But Congress zero-funded the CSR line-item. The Obama Administration went ahead with payments, on the theory that CSR was part-and-parcel of the well integrated ACA--and payments were therefore allowed, even if not specifically authorized.

But when the (then-Republican) House of Representatives sued, the district court ruled the payments unlawful. (The court wrote that "[t]he [ACA] unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers. Such an appropriation cannot be inferred. None of the Secretaries' extra-textual arguments--whether based on economics, "unintended" results, or legislative history--is persuasive.") The court stayed an injunction pending appeal. But the Trump Administration reversed course.

In doing so, the Trump Administration adopted the same legal analysis as the district court that struck the payments. (Again: this was a switch from the legal position in the Obama Administration.) In language that's telling and relevant to the wall question, the Trump DOJ wrote this:

There is no more fundamental power granted to the Legislative Branch than its exclusive power to appropriate funds. And the Executive Branch cannot unilaterally spend money that Congress has not appropriated. Congress's repeated choice to deny funding for CSR payments is thus Congress's prerogative. When Congress refuses to appropriate money for a program, the Executive is required to respect that decision.

So, no: By the Administration's own reckoning, and by district court precedent, absent specific congressional authorization to do so, President Trump cannot move money around to fund the wall.

February 12, 2019 in Congressional Authority, Executive Authority, News, Separation of Powers, Spending Clause | Permalink | Comments (0)

Friday, January 25, 2019

Court Denies Stay Pending Appeal of Order Vacating Sweeping Restrictions on Asylum Claims

Judge Emmet G. Sullivan (D.D.C.) today denied the government's request to stay the court's earlier order vacating the government's restrictions on asylum pending appeal. The ruling means that the court's order will remain in place--and the government can't enforce its crabbed "credible fear" standard in expedited removal proceedings--while the government appeals the earlier ruling.

Recall that the court halted DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings, because those standards violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious under the Administrative Procedure Act. (AG Sessions initiated the change in a ruling in Matter of A-B-, and DHS followed up with administrative guidance.) Those standards restricted claims by individuals who claim asylum based on a fear of domestic violence and gang violence.

The government claimed that the court only had authority to rule on the government's standards with regard to the plaintiffs in this case, and not across the board.

But the court rejected that argument, pointing to the language of the INA and the legislative history. The court also wrote that the government won't be irreparably harmed, and that third parties (other immigrants subject to the government's standard) would be harmed with a stay.

The ruling underscores the court's original order on the merits.

January 25, 2019 in Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Court Denies Restraining Order in Federal Employees' Lawsuit Over Shutdown

Judge Richard J. Leon (D.D.C.) earlier this week denied a temporary restraining order in favor of the federal employees who sued to get backpay and to not have to go to work during the shutdown. Judge Leon ordered further argument next Thursday, but the case is now likely moot (in light of today's agreement to get things going again, even if only temporarily).

The ruling means that the court declines to order the government to do anything for the employees, and leaves things to the political branches to work it out.

Judge Leon wrote in explicit separation-of-powers terms (and animated text--all emphasis in original):

But I want and need to make something very clear: the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches. We are an independent, co-equal branch of government, and whether or not we can afford to keep our lights on, our oath is to the Constitution and the faithful application of the law. In the final analysis, the shutdown is a political problem. It does NOT, and can NOT, change this Court's limited role. Of that I am very certain.

***

But a TRO is designed to freeze the state of affairs, not throw the status quo into disarray. The TROs sought here would do the latter. Moreover, the emergency relief standard is a sliding scale, and one of the factors I have to weigh is whether granting relief sought is in the public interest. [One group of plaintiffs] would effectively have me order the Federal Aviation Administration to pay [their] unpaid salaries with money that the FAA does not have right now. As plaintiffs well know, Congress has the power of the purse, not me. I cannot grant injunctive relief in that form.

[Another group of plaintiffs] would have me, in effect, give all currently excepted federal employees--numbering in the hundreds of thousands across dozens of agencies--the option not to show up for work tomorrow. These are employees who perform functions that the relevant agencies have determined bear on the safety of human life and/or the protection of property. If I were to issue a TRO, there is no way to know how many of these excepted employees would choose not to report to work tomorrow, and there is no way to know what public services would therefore go unprovided.

It would be profoundly irresponsible under these circumstances--with no record whatsoever telling me what government functions would be impacted--for me to grant that TRO. At best, it would create chaos and confusion--at worst, catastrophe!

January 25, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Wednesday, January 16, 2019

The Federal Employees' Lawsuits Over the Shutdown

Over the last week, three separate lawsuits have been filed against President Trump and administration officials arguing that the government violates due process, the Thirteenth Amendment, the Fair Labor Standards Act, and the Anti-Deficiency Act in ordering certain federal workers to work without pay. In short, the plaintiffs collectively argue that compelled work amounts to a taking of property without due process; that compelled work without pay amounts to involuntary servitude; that the government violates the FLSA by failing to provide on-time payments of overtime wages; and that the government violates the Anti-Deficiency Act by ordering federal employees to work, even if their services aren't needed "in connection with an imminent threat to human life or property" (as required by the Act). (The plaintiffs argue that the government's interpretation of the Anti-Deficiency Act, based on OLC memos, is at odds with the 1990 amendments to the Act. They also argue that this interpretation, and the Act itself, unconstitutionally encroach on Congress's appropriations authority.)

The National Treasury Employees Union complaint is here; the Air Traffic Controllers Association complaint is here; and the anonymous federal employees' complaint is here.

The plaintiffs (again, collectively) seek declaratory relief, back pay and overtime pay, and an injunction prohibiting the government from ordering them to work without pay, among other things.

January 16, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Wednesday, December 19, 2018

Court Strikes Administration's Restrictions on Domestic and Gang Violence Asylum Seekers

Judge Emmet Sullivan (D.D.C.) today ruled that several aspects of the DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious and therefore invalid under the Administrative Procedure Act.

Judge Sullivan vacated the credible fear policies; permanently enjoined the government from applying those policies and from removing plaintiffs who are currently in the United States without first providing a valid credible fear determination; and ordered the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with a new credible fear determination. (At the same time, the court identified portions of the standards that were not inconsistent with the INA.)

The ruling means that the government cannot implement its sweeping and unilateral restrictions on asylum claims at the credible fear stage based on domestic violence and gang violence. It follow by just a couple weeks another significant ruling against Administration asylum restrictions.

The ruling is a huge victory for asylum claimants, and a serious blow against the Trump Administration's efforts to restrict the bases for asylum at the credible fear stage by unilateral agency action.

The case tested then-AG Sessions's ruling in Matter of A-B- and a USCIS Policy Memo, both of which had the effect of denying asylum to victims of domestic violence and gang violence. The court ruled that most of the standards in these administrative documents violated the INA and the APA.

December 19, 2018 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, December 12, 2018

Can President Trump be Criminally Charged? And Should He Be?

In the wake of the government's release of sentencing memos for Michael Cohen--and their fingering of President Trump for unlawful acts during the campaign--there's renewed interest in whether a president can be criminally charged.

We posted previously on this and related issues here (on President Trump's lawyers' take on the question) and here (on law profs' response). And here's the 2000 OLC memo.

Marty Lederman has an op-ed in today's NYT, where he argues that President Trump could be indicted, but that there are bigger fish to fry in the Mueller investigation:

Perhaps Mr. Trump will become the first president to face criminal charges. Perhaps not. But that's the least of it. We'd be wise to shift our attention from the unlikely possibility of a trial to the much more important matter of what the Mueller investigation might tell us about Mr. Trump's relationships with Russia and whether they compromise his ability to protect and defend the nation.

December 12, 2018 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)