Monday, May 11, 2020

Court to Test Congressional Authority to Subpoena President's Financial Records

The Supreme Court will hear oral arguments tomorrow in Trump v. Mazars and Trump v. Deutsche Bank, testing whether Congress has authority to subpoena the President's financial records from third-party custodians of those records. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission. (This doesn't address the political question issue, which the Court asked the parties to brief after this came out).

FACTS

These cases test the authority of three different Committees of the U.S. House of Representatives to issue third-party subpoenas in support of their oversight and investigations into different aspects of President Trump’s private financial dealings. Let’s look at the Committees’ investigations one at a time.

The Oversight Committee Investigation

The House Committee on Oversight and Reform is engaged in an ongoing investigation into Executive Branch ethics and conflicts of interest, presidential financial disclosures, federal lease management, and possible violations of the Constitution’s Emoluments Clauses. As relevant here, the Committee is examining President Trump’s personal business interests and his decision to maintain ties to these interests (and not fully divest from them, consistent with prior presidential practice). In particular, the Committee has identified concerns with the Government Services Administration’s (GSA) ongoing management of the lease of the federal Old Post Office Building for the Trump International Hotel in Washington, D.C.; the adequacy and accuracy of President Trump’s financial disclosures and the adequacy of federal ethics laws; and allegations by Michael Cohen that President Trump falsely reported his assets. According to the Committee, the investigation is designed “to determine the adequacy of existing laws and perform related agency oversight.”

After the Committee heard testimony from Cohen that included allegations that President Trump falsely reported his assets, the chair wrote to Mazars and requested accounting documents related to President Trump and certain of his businesses from January 1, 2009, to the present. Mazars declined to produce this material.

On April 12, 2019, the chair then sent a memorandum to Committee members explaining the need for a subpoena to Mazars. The memo identified four subjects that the Committee had “full authority to investigate”: (1) “whether the President may have engaged in illegal conduct before and during his tenure in office,” (2) “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “whether [the President] is complying with the Emoluments Clauses of the Constitution,” and (4) “whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities.” The chair also wrote that the Committee’s “interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction.”

The Committee then issued a subpoena to Mazars seeking documents related to financial statements, engagement letters, supporting documents, and related communications for President Trump and certain of his businesses, from 2011 through 2018.

The Financial Services Committee Investigation

The Financial Services Committee is engaged in an ongoing, broad investigation into financial institutions’ compliance with banking laws and whether those laws adequately protect against foreign money laundering, other financial crimes, and high-risk loans. As part of this investigation, the Committee is looking into practices at Deutsche Bank and Capital One.

These banks “have long provided business and personal banking services” to President Trump and his family. According to a series of media reports over the last few years, these banks made questionable loans to President Trump. Most recently, a New York Times Magazine article reported that Deutsche Bank had concerns that President Trump’s “real estate projects were laundromats for illicit funds from countries like Russia, where oligarchs were trying to get money out of the country.”

In order to further its investigation, the Committee issued two subpoenas. The first was directed at Deutsche Bank; it sought documents and records that included detailed financial information “belonging to, or likely to reveal information, concerning” President Trump and his family. The Deutsche Bank subpoena covered material from January 1, 2010, to the present (with no closing date). The second subpoena was directed at Capital One; it sought information about various Trump businesses and their principals and “other representatives,” including businesses affiliated with the Trump International Hotel in Washington, D.C. The Capital One subpoena covered material from July 19, 2016, to the present (again with no closing date). Deutsche Bank and Capital One declined to comply.

The Intelligence Committee Investigation

The House Intelligence Committee is engaged in an ongoing investigation into “efforts by Russia and other foreign actors to influence our political process before, during, and since the 2016 election.” The investigation includes assessing “whether foreign actors have financial leverage over President Trump, whether legislative reforms are necessary to address these risks, and whether our Nation’s intelligence agencies have the resources and authorities needed to combat these threats.”

In order to further its investigation, the Committee issued a subpoena to Deutsche Bank, covering the exact same material and time frames as the Financial Services Committee’s subpoena. Deutsche Bank declined to comply.

In all, the three House committees issue four third-party subpoenas for financial information about President Trump.

Before the response date for any of the subpoenas, President Trump brought two separate lawsuits—one in Washington, D.C., and the other in New York City—to stop Mazars and the banks from complying. President Trump sued “solely in his capacity as a private citizen.” Mazars and the banks took no position on the underlying issue—the Committees’ authority to issue the subpoenas—and so the Committees intervened as defendants.

After the President filed suit, the House passed Resolution 507, purporting to ratify the Committees’ subpoenas. The Resolution stated that the House “ratifies and affirms all current and future investigations” and “subpoenas previously issued or to be issued in the future, by any standing or permanent select committee of the House,” related to the President, his immediate family, his businesses and organizations, and others with ties to the President, including any “current or former” government employees.

Both district courts ruled against President Trump, and the D.C. and Second Circuits affirmed. This appeal followed.

CASE ANALYSIS

Congress has implied authority under the Constitution to engage in investigations and oversight of issues and areas that fall within its legitimate lawmaking power. As part of this implied authority, Congress can issue subpoenas to collect information to advance its investigations and oversight. Either house of Congress can delegate these authorities to its committees.

But a committee’s investigative and oversight authorities are not unbounded. Congressional investigations or oversight must serve a “legitimate legislative purpose,” they must be authorized by their full house, and they may not impermissibly encroach on another branch’s authority.

The parties frame their arguments around these baseline principles.

President Trump argues first that the committees did not have a legitimate legislative purpose in issuing the subpoenas. For one, he says that the subpoenas at best seek information that might lead to legislation. But he claims that this is not enough to bring the subpoenas within Congress’s legitimate lawmaking authority. For another, he asserts that the subpoenas probe into areas where Congress simply cannot legislate, for example, extending conflict-of-interest restrictions to, and imposing disclosure requirements upon, the President, and that they therefore lack a legitimate legislative purpose. For a third, he contends that the bank subpoenas impermissibly seek his personal financial information only as a “case study” for financial sector reform, and that simply does not fit within Congress’s legitimate lawmaking power. For a fourth, he contends that the subpoenas are part of the Committees’ exercise of law enforcement power, not law-making power, and that they impermissibly encroach on executive authority in violation of the separation of powers. And for a fifth, he asserts that the subpoenas are based on the Committees’ pure political interests, not legitimate lawmaking interests.

President Trump argues that for all these reasons even an ordinary congressional subpoena would fail. But he claims that the “unprecedented” congressional subpoenas seeking private information of the President should be subject to an even higher standard, and that under a higher standard these subpoenas would fail all the more.

President Trump argues next that the Committees lack express authority under House rules to issue the subpoenas. He claims that express delegation to the Committees to issue subpoenas is necessary in investigations, like these, that raise serious separation-of-powers issues, because “Congress seeks to encumber the President” and because the Committees are pushing the outer boundaries of congressional authority. Moreover, he says that requiring an express delegation, and ruling against the Committees because they lacked it, would allow the Court to avoid ruling on the underlying constitutional issues. President Trump contends that Resolution 507 did not provide express delegation, because it did not purport to amend House rules, did not expand the Committees’ authority, and acted retroactively “in violation of controlling precedent.” Finally, President Trump argues that interpreting Resolution 507 to expressly delegate power to the Committee to issue these subpoenas would only clear the way for every House Committee to issue its own subpoenas. According to the President, this, in turn, would “keep[] the President from fulfilling the obligations of his office.”

The government weighs in as amicus to support President Trump. The government lodges arguments similar to President Trump’s, but puts a finer point on the “heightened requirements” that it says Congress must meet in order to subpoena the President’s records. In particular, the government proposes this:

At the threshold, the full [House] chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legitimate legislative purpose. A congressional committee cannot evade those heightened requirements merely by directing the subpoenas to third-party custodians, for such agents generally assume the rights and privileges of their principal . . . .

For many of the same reasons raised by President Trump, the government says that the Committees’ subpoenas do not meet this heightened test.

The Committees counter that legislative subpoena power is an essential and time-tested part of congressional authority. (They rehearse in their merits brief the many similar congressional investigations that illustrate why their own investigations are hardly “unprecedented,” as the President contends.) They say that congressional authority’s “historical pedigree is too strong for it to be narrowed by the arguments” of the President and the government. They contend that instead of applying “heightened requirements” for these subpoenas (as the President and the government argue), the Court should defer to the Committees, so long as the subpoenas are related to a valid legislative purpose—one that “will inform Congress on a subject on which legislation could be had.”

The Committees argue next that they had “multiple legislative purposes” in issuing the subpoenas, as the courts below found. To illustrate this, they point to several pending bills, which are constitutionally permissible, that will be informed by these investigations. Moreover, the Committees contend that it doesn’t matter that they are investigating wrongdoing, so long as the investigations are related to a legitimate legislative purpose (which they are). And they say, contrary to the President and the government, these subpoenas (directed, as they are, to third parties) do not impair the President’s ability to perform his constitutional duties.

The Committees argue that the government’s “heightened standard” for subpoenas for material related to the President’s purely personal behavior conflicts with the Constitution. They say that the government’s proposed requirement that the full House authorize subpoenas concerning the President disregards the House’s constitutional power to determine its own rules. They contend that the proposed requirement that courts more closely scrutinize Congress’s stated purposes “invites inappropriate judicial micromanagement of Congressional oversight.” And they assert that the proposed requirement that a subpoena is “demonstrably critical” to congressional purposes “brazenly stacks the deck in favor of one Branch over another.” But the Committees contend that even if the Court applied the government’s test, their subpoenas would satisfy it.

Finally, the Committees argue that the House properly authorized them to conduct their investigations and issue their subpoenas. They contend that they have explicit authority to issue any subpoenas that they “consider[] necessary” to carry out “any of [their] functions and duties” under House Rule XI.2(m)(1). And they say that House Resolution 507 ratified and affirmed the specific subpoenas here.

SIGNIFICANCE

This case, just like the companion case Trump v. Vance, testing whether President Trump has to comply with a state grand jury subpoena for his tax records, has obvious and much-discussed political significance. But the subpoenas in this case sweep more broadly than the subpoena in Vance: these subpoenas seek a variety of material related to President Trump and his business organizations, while the subpoena in Vance now only seeks his tax records. As a result, this case has potentially higher stakes. In particular, a ruling against President Trump could allow the Committees to obtain a trove of material relating to President Trump’s financial dealings and their bearing, if any, on his public duties. On the other hand, a ruling for President Trump could hamstring the Committees’ investigations, or even halt them altogether, and close off this avenue to public disclosure of this material. While President Trump’s taxes may get more play in our popular political debates, his broader financial dealings are likely far more significant.

As with Vance, however, it’s not clear how much any of this will matter. Given President Trump’s remarkably stable and durable base, and given his similarly remarkably stable and durable opposition, the Court’s ruling, whatever it is, will likely be interpreted by the general public in pure political terms (pro-Trump, or anti-Trump). That’s especially true coming on the heels of the impeachment proceedings, when relations between President Trump and House Democrats are already at a new low. In this highly strained political environment, it’s easy to see how partisans will put a political cast on these rulings, and on the justices behind them. It’s equally easy to see how the inevitable reactions to these cases, therefore, threaten to do lasting harm to our collective faith in a politically independent judiciary.

This case also threatens to do lasting harm to Congress. If adopted by the Court, President Trump’s arguments, echoed by the government, could substantially rein in Congress’s investigation and oversight authorities. In particular, if the Court were to adopt the argument that Congress lacked a legitimate legislative purpose—an argument that this administration has pressed hard in other congressional investigations not directly involving the President—this could seriously constrain Congress’s power to check the Executive Branch. In its strongest form, sometimes adopted by this administration, this argument could allow the Executive Branch to wholly ignore congressional oversight and investigations, leaving Congress little practical authority to coax the administration to cooperate. But even at the very least, this argument, if adopted by the Court, could open the door to active judicial intervention in congressional oversight and investigations. In short, this argument, if adopted by the Court, would shift power away from Congress to the Executive Branch and the courts, and thus significantly alter our current separation of powers.

 

May 11, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, May 5, 2020

Argument Preview: Little Sisters v. Pennsylvania, Trump v. Pennsylvania

The Supreme Court will hear oral arguments in these consolidated cases tomorrow, testing whether the Trump Administration had authority to grant a categorical exemption from the ACA's contraception guarantee for organizations with a religious or moral objection to contraception. Here's my Preivew, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA) in order “to increase the number of Americans covered by health insurance and decrease the cost of health care.” To those ends, the ACA requires employers, with some exceptions (those with 50 or fewer employees, and those with grandfathered insurance plans), to offer their employees health insurance with certain “minimal essential coverage.” As relevant here, the ACA requires employers to offer insurance to female employees that includes “preventive care and screenings” without cost to the employees. The ACA delegates authority to determine the particular “preventive care and screenings” to the Health Resources and Services Administration (HRSA), an office within the Department of Health and Human Services (HHS).

Pursuant to this authority, the HRSA and other implementing agencies (the Department of Labor and the Department of the Treasury) issued Interim Final Rules (IFRs) that required employers to provide insurance coverage for items in HRSA’s preventive-care guidelines. Those guidelines included all female contraceptives approved by the Food and Drug Administration (FDA). The HRSA and other implementing agencies exempted certain religious employers (like churches), however, out of recognition that some individuals and organizations have faith-based objections to providing coverage for contraception.

The agencies then issued their final rule. The final rule maintained the exemption for certain religious employers (again, like churches), and added an accommodation for certain other religious non-profit employers that objected to the contraceptive guarantee. Under the accommodation, an employer would communicate its objection to its insurer or the third-party administrator (TPA) of its health plan. At that point, the federal government required or encouraged the insurer or TPA to provide contraceptive coverage directly to the employee, separate from the employer’s health-insurance plan, thus bypassing the objecting employer.

Numerous non-profit and for-profit religious organizations (including the Little Sisters) sued to halt the accommodation provision under the Religious Freedom Restoration Act (RFRA). They argued that the provision didn’t really accommodate their faith-based objections to providing contraceptive coverage to employees. Instead, they claimed that the requirement that they communicate their objections to their insurer or TPA triggered their insurer or TPA to provide contraceptive coverage. By this reckoning, the accommodation actually made them complicit in providing contraception to their employees.

Eight of nine circuit courts ruled against the plaintiffs in these cases. The Court stepped in to grant emergency relief in two of them, one brought by the Little Sisters, the other brought by Wheaton College, but the Court did not address the merits. Around the same time, in June 2014, in Burwell v. Hobby Lobby, 573 U.S. 682 (2014), the Court ruled that the contraceptive guarantee violated the RFRA as to closely-held for-profit businesses. (The final rule did not include an accommodation for for-profits.) The Court held that the guarantee substantially burdened those businesses’ exercise of religion, and that there were other ways that the government could  provide contraceptive coverage to female employees. As an example, the Court pointed to the accommodation for religious non-profits in the final rule; but it also specifically declined to say whether the accommodation itself violated the RFRA.

In response to the Court’s emergency relief in the non-profit cases and its ruling in Hobby Lobby, the implementing agencies modified the accommodation in two ways. First, they allowed objecting non-profits to notify HHS of their objections, instead of their insurers or TPAs. Next, they extended the accommodation to closely-held for-profits.

In 2016, in Zubick v. Burwell, 136 S. Ct. 1557, the Court finally took up the cases brought by religious non-profits. But rather than ruling on the merits, the Court vacated the lower courts’ rulings and ordered the parties to work out a solution. (The Court only had eight justices at the time. Justice Antonin Scalia had deceased, and the Senate refused to consider President Barak Obama’s nominee to replace him. As a result, the Court was probably evenly divided on the merits, and this solution allowed the Court avoid a four-four ruling on this important question.)

The parties could not work out a solution by the end of the Obama Administration. As a result, the implementing agencies retained the existing accommodation.

Then, in October 2017, the agencies issued IFRs that expanded the exemption for religious organizations. In particular, the IFRs categorically exempted for-profits and non-profits with a religious or moral objection from the contraceptive guarantee. (The agencies added organizations with a “moral” objection.) The agencies acknowledged that the rules would leave between 31,700 and 120,000 women without contraceptive coverage in one year.

Pennsylvania sued to halt these latest IFRs, arguing that the agencies violated the APA. The district court granted a nationwide preliminary injunction barring implementation of the IFRs. (Several other similar cases were also pending at the time, and at least one other court issued an injunction. California v. HHS, 281 F. Supp. 3d (N.D. Cal. 2017).) The court also declined to allow the Little Sisters to intervene in the case, although the Third Circuit later permitted the organization to defend “the portions of the [2017 religious rule] that applied to religious nonprofit entities.”

As the case was pending, the agencies adopted final rules nearly identical to the latest IFRs. In particular, the Final Rules exempted all private entities, including publicly-traded corporations, from the contraceptive guarantee (or allowed them to self-exempt) based on religious objections; exempted all but publicly-traded corporations based on moral objections; and made the accommodation option. The agencies acknowledged that the Final Rules would mean that between 70,500 and 126,400 women would lose access to contraception in one year.

Pennsylvania, now joined by New Jersey, filed an amended complaint. The district court granted another nationwide preliminary injunction. The Third Circuit affirmed, and this appeal followed.

CASE ANALYSIS

The parties raise four different issues. Let’s take a look, one at a time.

Standing

The Little Sisters argue that they have appellate standing, because they have a direct stake in the outcome of this case. They claim that the Third Circuit was wrong when it held that they lacked standing based on the theory that a Colorado injunction in a similar case, also involving the Little Sisters, mooted the Little Sisters’ interests in this case. The organization says that the Colorado injunction is more limited than what the Little Sisters seek in this case, and so they continue to have an independent interest in this case. The Little Sisters contend that their standing is even stronger now that the case is at the Court. After all, they assert, the Court’s ruling will affect all similar cases.

Pennsylvania counters that the Little Sisters lack appellate standing. The state says that the agencies are now enjoined from enforcing the contraceptive guarantee against the organization, and that the district court expressly excluded the organization from the injunction now on appeal. Because the Little Sisters lack a direct stake in this injunction, Pennsylvania claims that the organization lacks appellate standing in this case.

Substantive Statutory Authority

The respondents argue that the agencies had statutory authority to issue the final rules. They claim that the plain text of the ACA delegates sufficiently broad authority to the HRSA to grant categorical exemptions from the preventive-services guarantee, and that the agencies, in issuing the final rules, merely drew on that broad authority. They point out that the agencies provided for a categorical exemption from the beginning (for religious organizations like churches), and claim that this only underscores their position that the ACA delegates authority to grant this categorical exemption.

The respondents argue next that the RFRA requires, or at least permits, the broader exemptions in the final rules. They point to the Court’s ruling in Hobby Lobby that the contraceptive guarantee, without an accommodation, violates the RFRA. And they contend that the accommodation doesn’t really change that calculus. That’s because at least some religious non-profits see the accommodation itself as triggering the contraceptive guarantee, in violation of their religious beliefs. In other words, for some, the accommodation itself violates the RFRA. As a result, the respondents contend that the RFRA required the agencies to adopt the categorical exemptions in the final rules. (The respondents say that even if the RFRA did not require the agencies to adopt the final rules, it at least permitted the agencies to adopt them. They contend that an agency can be more protective of religious rights than the RFRA requires, if it so chooses.)

On the other side, Pennsylvania argues that the ACA does not authorize the agencies to adopt the final rules. The state says that the ACA only delegates authority “to identify which preventive services for women must be covered,” and not to “grant non-health related exemptions to a sub-agency with narrow expertise in health care.” Pennsylvania contends that the original exemption for religious organizations is different, because it was “independently authorized by the well-established church autonomy doctrine,” and not the ACA itself.

Pennsylvania argues next that the RFRA does not authorize the final rules. The state says that the accommodation is consistent with the RFRA, because it does not substantially burden religious exercise. (The state claims that the accommodation simply requires a religious non-profit to report its objection. At that point, federal law, not the religious non-profit, is responsible for guaranteeing contraceptive coverage.) Because the accommodation doesn’t violate the RFRA, the state contends that the RFRA provides no basis for issuing a broader, categorical exemption. Moreover, Pennsylvania asserts that the RFRA doesn’t affirmatively grant federal agencies any rulemaking power, except to the extent that an agency regulates to resolve a RFRA violation in a program the agency administers. But the state says that this is not the case here.

Procedural Compliance with the APA

The respondents argue that the final rules comport with APA requirements. They contend that the final rules—the only rules at issue here—complied with APA notice-and-comment requirements. And they say that the earlier IFRs complied with the APA requirements for interim final rules. They point out that all of the agencies’ rules on the contraceptive guarantee started as interim final rules, and that the latest IFRs are no different.

Pennsylvania replies that the final rules violate the APA. The state contends that the 2017 IFRs violated the APA, because they failed to meet the APA standard for interim final rules, in particular, that they were not so urgent as to allow the agencies to bypass normal notice-and-comment procedures. The state contends that the 2018 final rules violate the APA, too, because the agencies did not allow for pre-publication notice and comment. (Instead, the agencies took comments on the 2017 IFRs, not the proposed 2018 final rules.) Pennsylvania argues that the APA does not permit the agencies to sidestep notice-and-comment requirements this way.

Nationwide Injunction

Finally, the respondents argue that the Court should reverse the district court’s nationwide injunction. They claim that the nationwide injunction grants relief far beyond the interests of the states, and thus exceeds the power of the district court. They claim that a nationwide injunction in this case is particularly inappropriate, because it could conflict with rulings in the many other similar cases pending around the country.

Pennsylvania argues in response that the nationwide injunction is consistent with the APA, which requires courts to set aside unlawful rules without limitation and grants courts authority to enter preliminary orders “to postpone the effective date of an agency action or to preserve status or rights.” The state also says that a nationwide injunction fully redresses its injuries, because the final rules would exempt out-of-state entities whose employees, students, or children might come to Pennsylvania and burden the state with the cost of their contraceptive coverage.

SIGNIFICANCE

This case is the latest chapter, and probably the last one, in the long-running saga over the contraceptive guarantee. This regulatory provision has been under sustained attack from the beginning. While opponents of guaranteed contraception have lost overwhelmingly in the circuit courts, the Supreme Court has been a much friendlier venue. As mentioned above, the Court ruled in Hobby Lobby that the guarantee (without an accommodation) violated the RFRA as to closely-held corporations. Moreover, it granted interim relief in a pair of cases challenging the accommodation for religious non-profits. And while it dodged the underlying issue in Zubick, there’s reason to think that it ruled this way to avoid a four-four split on the eight-justice Court—in other words, that four of the eight justices would have struck the accommodation.

If that’s right, then we might expect that there are now five justices that would rule that the accommodation violates the RFRA. (Since Zubick, Justice Neil Gorsuch replaced Justice Scalia, and Justice Brett Kavanaugh replaced Justice Anthony Kennedy. If the Court would have split four-four on the merits in Zubick, Justice Gorsuch’s addition probably means that there are now five votes for striking the accommodation.)

But that doesn’t necessarily answer the questions in this case. In particular, even if the accommodation violates the RFRA, that alone doesn’t mean that the agencies had authority to issue the Final Rules, or that they issued them consistently with the APA. Remember that the Final Rules categorically exempt a much broader set of organizations than were covered by the accommodation. (Keep an eye on the categorical exemption for organizations with a moral objection to contraception. This opens a potentially gaping hole in the contraceptive guarantee.) Moreover, the government itself estimates that the Final Rules will result in lost contraceptive coverage for tens of thousands of women in one year—seemingly undermining the very purpose of the ACA to provide “minimal essential coverage.” The broad sweep of the Final Rules, and their procedural irregularities, could mean that the agencies lacked authority to adopt them, even if a majority on the Court might agree that the accommodation violated the RFRA.

On a different note entirely: This case raises a critically important question about the authority of district courts to issue nationwide injunctions. This practice is increasingly common, and increasingly controversial, as plaintiffs have sought more and more to halt administration policies across the board. The government invites the Court to address this issue, even if it doesn’t rule in favor of the government on the merits.

This question may seem like it has partisan overtones. But it doesn’t. If the Court rules that district courts lack authority to issue nationwide injunctions, that will take away a key tool that advocates can use—and have used—to challenge government policies in any administration.

May 5, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, May 1, 2020

Seventh Circuit Strikes AG's Grant Conditions on Sanctuary Cities

The Seventh Circuit once again struck AG Barr's unilateral conditions on a federal law-enforcement grant to sanctuary cities, ruling that the conditions violated the separation of powers and upholding a nationwide injunction against their enforcement.

The ruling is yet another significant victory for sanctuary cities. Just one circuit, the Second Circuit, has upheld the conditions; four other circuits have overturned them. We last posted on the issue--on the Second Circuit ruling--here.

The court ruled that the AG lacked statutory authority to impose the notice, access, and compliance conditions on Chicago's Byrne JAG grant. The court also ruled that the AG lacked authority to impose two additional conditions, the harboring condition (which prohibits grant recipients from making any "public disclosure . . . of any federal law enforcement information" in order to conceal or harbor a fugitive from justice) and the additional certification condition (which requires recipients to certify that they don't have any law or policy that would impede federal immigration enforcement). (The AG added these last two conditions while the case was pending.)

The court affirmed the district court's nationwide injunction because of the nature of the AG's violations (in particular, the AG's constantly evolving claimed statutory authority, and the AG's imposition of new conditions, all seemingly designed to work around existing injunctions) and because of the nature of the grant (a formula grant, so that Chicago's portion depends on the portions awarded to other jurisdictions nationwide).

Judge Manion concurred in the court's ruling that the conditions violate the separation of powers, but dissented as to the nationwide injunction.

May 1, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, March 26, 2020

First Circuit Strikes DOJ's Restrictions on Sanctuary Cities

The First Circuit this week became the latest appellate court to rule that the Administration lacked statutory authority to rein in and punish sanctuary cities. The court ruled that the Justice Department exceeded its statutory authority in imposing conditions on a DOJ law-enforcement grant program (the Byrne JAG program) for local jurisdictions.

The ruling was the latest victory for sanctuary jurisdictions. At the same time, it deepens a split: the First, Third, Seventh, and Ninth Circuits have all now struck DOJ's conditions; only the Second Circuit has upheld them. The ruling comes closely on the heels of the Trump Administration's announcement that it'll start withholding Byrne JAG funds from noncomplying jurisdictions based on the Second Circuit ruling.

We last posted, on the Second Circuit ruling, here.

The cases all involve three DOJ-imposed conditions on local jurisdictions' continued receipt of Byrne JAG funds: (1) a "notice" condition that requires grant recipients to provide notice to federal immigration authorities when they release particular (undocumented) individuals from custody; (2) an "access" condition that requires local authorities to grant access to prisons, jails, and the like to federal immigration enforcement officers; and (3) a "certification" condition that requires local authorities to certifiy compliance with 8 U.S.C. Sec. 1373, which prohibits state and local governments from restricting their officers from communicating with federal immigration enforcement officers. Under DOJ's order, if cities don't comply with the new conditions, they'll lose funding. 

In each of the cases, sanctuary jurisdictions sued, arguing that DOJ lacked statutory authority to impose the conditions, that the conditions violated the Administrative Procedure Act, and that the conditions violated the Constitution (separation of powers, because Congress, not the Administration, gets to impose conditions; and federalism principles). 

The First Circuit ruled that DOJ lacked statutory authority to impose the conditions, and therefore didnt' touch the APA or constitutional claims. In short, the court said that "DOJ's kitchen-sink-full of clever legal arguments" didn't cut it--that DOJ doesn't have statutory authority to unilaterally impose these conditions. The court took specific issue with the analysis by the Second Circuit, sharpening the points of dispute.

The ruling makes it even surer now (if that's possible) that this issue is headed to the Supreme Court--assuming, that is, that the Administration doesn't change in the 2020 election, or that this Administration doesn't change its position.

March 26, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, March 13, 2020

D.C. Circuit Vacates McGahn Ruling, Sets for Rehearing En Banc

The full D.C. Circuit voted to reconsider the question whether a House committee has standing to sue a former executive branch officer. The court ordered rehearing in Committee on the Judiciary v. McGahn (and House of Representatives v. Mnuchin, which raises the same standing question) and vacated the panel's earlier ruling that the Committee lacked standing.

Recall that the panel held that the Judiciary Committee lacked standing to sue McGahn, a former executive branch official. In short, the court said that federal courts can't hear pure disputes between the coordinate branches; instead, there must be a plaintiff who was personally harmed in order to get the claim into federal court.

Today's order undoes that ruling and sets the case for rehearing before the entire D.C. Circuit.

This doesn't bode well for McGahn (and Mnuchin, and the Trump Administration). But whatever the en banc court ultimately says, this case is surely headed to the Supreme Court.

March 13, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, March 12, 2020

D.C. Circuit Authorizes Release of Full Mueller Report to House

The D.C. Circuit this week upheld a district court ruling that auhorized release of the full, unredacted Mueller Report to the House Judiciary Committee. The ruling, if upheld on inevitable appeal, means that the Committee'll get its hands on the full report, plus other, supporting grand jury materials from the Mueller investigation.

The ruling deals a sharp blow to the Trump Administration and DOJ. It means that the Committee can decide for itself, based on the full Mueller Report and additional grand jury materials, whether Administration witnesses lied to Congress or to the Mueller team, and the extent to which AG Barr misrepresented the full Report. It also means that the Committee can see for itself the full extent of any collaboration between the Trump campaign and Russia, and campaign and Administration efforts to conceal any collaboration or otherwise to obstruct congressional investigations.

But don't think that this means that we'll see the full Report anytime soon. First, there's the matter of the inevitable application for a stay, and appeal. Second, the court's holding hinges, in part, on the Committee's plan to protect the material from public release and to use only those portions that it needs.

The case arose when, July 26, 2019, the Committee filed an application for release of certain grand jury materials from the Mueller investigation with the federal district court. The Committee sought release of three categories of grand jury materials: (1) all portions of the Mueller Report that were redacted pursuant to the general grand-jury secrecy rule in Rule 6(e) of the Federal Rules of Criminal Procedure, (2) any portions of grand jury materials (transcripts, exhibits) that were referenced in those redactions, and (3) any other underlying grand jury material that related directly to certain individuals and events described in the Mueller Report.

The Committee sought release pursuant to the "judicial proceeding" exception, in Rule 6(e)(3)(E)(i), to the general rule of grand jury secrecy. The exception allows for release of grand jury materials in a "judicial proceeding," where the requesting party can demonstrate a particularized need for the material. After in camera review of a portion (but not all) of the requested materials, the district court held that the Senate's impeachment trial of President Trump met the "judicial proceeding" requirement, and that the Committee demonstrated a particularized need for the material. The court authorized release of the first two categories of grand jury material requested by the Committee.

(You might wonder how the Committee request for release relates to impeachment. Here's how: The Committee Report on Impeachment said that the conduct in the Articles of Impeachment was consistent with President Trump's behavior with regard to Russia and the Mueller investigation. Moreover, the Committee's impeachment investigation related to the Mueller report is ongoing, and may lead to addition articles of impeachment.)

The D.C. Circuit affirmed. The court held that the Senate's impeachment trial is, indeed, a "judicial proceeding" under Rule 6(e) (and that the Committee's investigation is part of, preliminary to, a Senate trial). It held that constitutional text and history, circuit precedent, and past practice all uniformly supported this conclusion. (On this point, "[i]t is only the President's categorical resistance and the Department's objection that are unprecedented.")

The court went on to say that the Committee demonstrated a particuularized need, because, among other things, the Committee may yet issue more articles of impeachment related to the President's behavior with regard to Russia and the Mueller investigation. 

Judge Rao dissented. She argued that the lower court actually made two moves--one to "authorize" release of the material, and the other to "order" DOJ to release it. She agreed that the court could authorize release, but she argued that it couldn't order DOJ to release the material, because the Committee lacked standing to bring a claim against the Executive Branch under the court's recent ruling in the McGahn case.

Both the court and Judge Griffith, in concurrence, wrote that the district court did no such thing. They both reminded that grand jury materials are judicial records, and that DOJ only holds them. As a result, this wasn't a dispute between the Committee and the Executive Branch. Instead, it was merely an application by the Committee to the courts, which the Executive Branch decided to oppose.

March 12, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, March 6, 2020

More Cases Challenge Trump's Reprogramming of Funds for Border Wall

Plaintiffs filed two new cases this week challenging President Trump's moves to shift around congressionally appropriated federal money for FY 2020 to fund the border wall. A group of states filed one suit; the Sierra Club and the ACLU filed the other. Both are in the Northern District of California.

Both suits challenge the administration's shift of funds from military accounts and President Trump's declaration of a national emergency in order to reprogram federal funds for the wall. The complaints point out that Congress specifically declined to provide funding for the wall in the 2020 Consolidated Appropriations Act, and that the administration's moves "circumvent Congress's exclusive control over appropriations." 

The suits come soon on the heels of yet another ruling enjoining the administration from reprogramming military funds. This one, from the Western District of Washington, says that the administration violated the Administrative Procedure Act in reprogramming funds, because reprogramming violated the CAA and because the administration didn't have other statutory authority to do it. The court entered a permanent injunction, halting the government from reprogramming, but only insofar as it took money away from a military project in the plaintiff-state.

The Washington court said this about last summer's Supreme Court ruling that stayed a different court's permanent injunction:

the Court believes that an injunction narrowly tailored to the State-specific injuries alleged in this case need not be stayed pending appeal. As noted above, two sister courts have already enjoined the Defendants' actions as to the entire $3.6 billion in redirected funds. Those injunctions have been stayed by various courts pending appeal [including the Supreme Court, in last summer's ruling]. The Court concludes that an injunction relating to only the $88.96 million appropriated to the Bangor Project is not necessarily controlled by or subject to the stays entered by the Supreme Court, the Fifth Circuit, or the Northern District of California. That is because those cases involve different plaintiffs and materially different alleged injuries. The Supreme Court reversed the Ninth Circuit and granted Defendants' application for a stay, noting that "[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005. . . . These rationales do not apply to the instant case, which involves distinct causes of action, a different plaintiff, different alleged injuries, and a different basis for standing. 

The two new complaints are similarly tailored to take account of the Supreme Court's ruling last summer.

March 6, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, March 5, 2020

Daily Read: Attorney General Barr's Reputation at Issue in Mueller Report FOIA Litigation

The issue of the Attorney General's candor is central to Freedom of Information Act (FOIA) litigation seeking the unredacted Mueller Report. In the consolidated cases of Electronic Freedom Foundation v. DOJ, and Jason Leopold & BuzzFeed News v. DOJ, the plaintiffs essentially challenge the basis of FOIA exemptions which DOJ has listed as justifying the numerous redactions.

In his Opinion today, United States District Judge for the District of Columbia, Reggie Walton, granted the plaintiffs' requests that the court conduct in camera review of the unredacted version of the Mueller Report. What makes the Opinion noteworthy is Judge Walton's explicit statements regarding the untrustworthiness of the Attorney General that justified the need for in camera review. After a detailed discussion of the circumstances, Judge Walton wrote:

Although Attorney General Barr can be commended for his effort to expeditiously release a summary of Special Counsel Mueller’s principal conclusions in the public interest, the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report—a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions. In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be “subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests” cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report, id., Ex. 7 (April 18, 2019 Letter) at 3, and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr’s actions and representations.

[brackets in original; bolding added].

Later in the opinion, Judge Walton continued:

Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification. Adherence to the FOIA’s objective of keeping the American public informed of what its government is up to demands nothing less.

Judge Walton, who was appointed to the federal court in 2001 and who has interestingly served as Judge and Presiding Judge of the United States Foreign Intelligence Surveillance Court, ordered the DOJ to

submit the unredacted version of the Mueller Report to the Court for in camera review. If, after reviewing the unredacted version of the Mueller Report, the Court concludes that all of the information has been appropriately withheld under the claimed FOIA exemptions, it will issue a supplemental Memorandum Opinion and Order granting the Department’s motion for summary judgment on that ground and denying the plaintiffs’ cross- motions. On the other hand, if the Court concludes after its in camera review that any of the redacted information was inappropriately withheld, it will issue a supplemental Memorandum Opinion and Order that comports with that finding.

A federal judge's opinion that the Attorney General's "lack of candor" supports an independent judicial examination of redacted material implicates separation of powers issues, to be sure, but it is also yet another indication of the lack of confidence in the Attorney General.

March 5, 2020 in Courts and Judging, Executive Authority, Interpretation, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Second Circuit Upholds Fed's Anti-Sanctuary Cities Conditions

The Second Circuit last week upheld the Justice Department's efforts to clamp down on sanctuary cities against by-now-familiar constitutional and statutory challenges. The ruling conflicts with cases from the Third, Seventh, and Ninth Circuits, and, as if there were ever any doubt, puts the issue on track for Supreme Court review.

The case, like the others, arose when AG Sessions unilaterally imposed three conditions on local governments receiving law-enforcement grants under DOJ's Byrne program. Sessions required grant recipients (1) to comply with federal law prohibiting state and local restrictions on their officers from communicating with federal authorities about a person's immigration status (in 8 U.S.C. Sec. 1373), (2) to provide federal authorities with release dates of unauthorized aliens, and (3) to give federal immigration officers access to incarcerated unauthorized aliens.

The conditions were designed to clamp down on sanctuary jurisdictions.

State and local governments sued, arguing that the conditions violated the separation of powers (because only Congress, not the Executive Branch, has authority to place conditions on federal funds), the Tenth Amendment (because 8 U.S.C. Sec. 1373 tells state and local governemnts what they can't do (restrict communication between their officers and the feds) in violation of the anti-commandeering principle, and the Administrative Procedure Act (becuase the conditions, even if authorized by statute, are arbitrary and capricious). 

The Second Circuit is the first circuit court to side with the government. 

The court ruled that the Byrne program, in 34 U.S.C. Sec. 10153, gave the AG broad authority to implement the program, including broad enough authority to impose the three conditions. As a result, the court held that the conditions didn't violate the APA's prohibition on unlawful agency action or the separation of powers.

As to the first condition--the one that requires Byrne grant recipients to certify comliance with Section 1373--the court rejected the plaintiffs' Tenth Amendment challenge. The court held that the amount of money at issue wasn't enough to "turn pressure into compulsion" for the plaintiffs to comply with Section 1373, and therefore certification of compliance with Section 1373 was a constitutionally permissible condition on the receipt of federal funds.

March 5, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Sunday, March 1, 2020

District Court Rules Cuccinelli Appointment Violates Law and Strikes his Restrictive Asylum Orders

Judge Randolph D. Moss (D.D.C.) ruled today that Ken Cuccinelli's appointment as Acting Director of U.S. Citizenship and Immigration Services violated the Federal Vacancies Reform Act of 1998 and struck two of his orders restricting certain asylum processes.

The ruling is a significant blow to the administration, USCIS, and Cuccinelli. It also puts the brakes on the then-Acting Secretary of Homeland Security's effort to side-step the FVRA and get Cuccinelli into office under the radar. (If affirmed, the ruling also forecloses any similar efforts to work around the FVRA in Homeland Security or other agencies.)

Moreover, the ruling could also affect other asylum claimants and other Cuccinelli decisions, if other cases follow. (Judge Moss was careful to limit relief to only the plaintiffs in this case, which was not a class action. But the reasoning extends to other asylum applicants and other Cuccinelli decisions in his role as acting Director.)

The case arose when certain asylum claimants challenged Cuccinelli's orders to limit the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to "one full calendar day from the date of arrival at a detention facility," and prohibited asylum officers from granting extensions to prepare for credible-fear interviews "except in the most extraordinary of circumstances." They argued, among other things, that Cuccinelli lacked authority to issue the orders, because his appointment as Acting Director was invalid under the FVRA.

The court agreed. The court noted that after the Senate-confirmed Director of the USCIS resigned, and after the Deputy Director (the Director's "first assistant") took over pursuant to the FVRA, the Secretary of Homeland Security simultaneously appointed Cuccinelli as a newly created Principal Deputy Director and revised the USCIS order of succession to designate the new Principal Deputy Director as the new "first assistant" to the Director.

The moves were designed to put Cuccinelli in the Acting Director's spot over the Deputy Director. (The FVRA specifies that when there's a vacancy in a Senate-confirmed job, the "first assistant" assumes the acting role, unless the President appoints a person under other provisions in the FVRA, not relevant here.)

But in addition to the bald effort to work around the FVRA, there was this weirdness, underscoring the fact that the Acting Secretary was trying to side-step the FVRA: the Acting Secretary specified that the order designating the Principal Deputy Director as "first assistant" "will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President."

The court held that the attempted work-around of the FVRA didn't work. In short, Cuccinelli "never did and never will serve in a subordinate role--that is, as an "assistant"--to any other USCIS official," because his appointment as Principal Deputy automatically elevated him to the Acting Director job. "For this reason alone, Defendants' contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or purpose of the FVRA."

The court thus ruled that Cuccinelli's two orders were issued without authorization and set them aside. It went on to limit relief to the plaintiffs in the case, however, and noted that the case wasn't a class action. As a result, the court vacated the plaintiffs' negative credible-fear determinations and remanded their cases to USCIS for further proceedings under the pre-order rules.

March 1, 2020 in Cases and Case Materials, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, February 28, 2020

D.C. Circuit Tosses House Judiciary Committee Suit to Compel McGahn Testimony

The D.C. Circuit dismissed the House Judiciary Committee's lawsuit seeking to compel the testimony of former White House Counsel Don McGahn. The court held that the Committee failed to assert a judicially cognizable injury, and that the case was therefore not justiciable under Article III.

The ruling deals a sharp blow to Congress's authority to compel testimony of, and to obtain information from, Executive Branch officials. It means that congressional lawsuits against Executive Branch officials to compel testimony are nonjusticiable, and that Congress will have to use its own powers (appropriations, appointments, contempt, impeachment) to obtain that testimony and information. As we've seen, however, those tools often don't do the job.

In short, the ruling invites presidential noncooperation with congressional oversight and investigations and, as a practical matter, with a noncooperative president, could all but mark the end of effective congressional oversight of the administration. Having said that, this'll surely be appealed.

We posted on the district court ruling here.

The court, in an opinion penned by Judge Griffith, ruled that the Committee lacked a judicially cognizable injury, and therefore lacked standing under Article III. It said that the courts have no business refereeing a pure dispute between Congress and the Executive Branch. It distinguished cases where the courts have ruled in inter-branch disputes, saying that those cases always involved a direct, cognizable harm to an individual, not a branch of government.

In this case, the Committee's dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the "rights of individuals" or some entity beyond the federal government. The Committee is not a private entity seeking vindication of its "constitutional rights and liberties . . . against oppressive or discriminatory government action." Nor does the Committee seek the "production or nonproduction of specified evidence . . . in a pending criminal case"--the "kind of controversy" threatening individual liberty that "courts traditionally resolve."

Instead, the Committee claims that the Executive Branch's assertion of a constitutional privilege is "obstructing the Committee's investigation." That obstruction may seriously and even unlawfully hinder the Committee's efforts to probe presidential wrongdoing, but it is not a "judicially cognizable" injury.

Judge Henderson concurred, but added that McGahn's arguments on both justiciability and the merits went too far:

First, McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute; I do not believe, however, Supreme Court precedent supports a holding of that scope. Second, McGahn's assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent.

Judge Rogers dissented:

The House comes to the court in light of the President's blanket and unprecedented order that no member of the Executive Branch shall comply with the subpoena duly issued by an authorized House Committee. Exercising jurisdiction over the Committee's case is not an instant of judicial encroachment on the prerogatives of another Branch, because subpoena enforcement is a traditional and commonplace function of the federal courts. The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties.

February 28, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Thursday, February 27, 2020

High Court Rebuffs Cross-Border Killing Case

The Supreme Court this week dismissed a case by parents of a Mexican youth against a U.S. Border Patrol agent for shooting and killing their son. The ruling declined to extend a Bivens remedy (a constitutional claim against a federal officer) to the cross-border killing and dismissed the case. The ruling ends the case and (if there were any doubt) underscores just how little is left of Bivens.

The case, Hernandez v. Mesa, arose after a U.S. Border Patrol agent shot and killed Sergio Adrian Hernandez Guereca, a 15-year old Mexican national, while he was playing with friends in the concrete culvert that runs between the U.S.-Mexico border. The child's parents sued Agent Jesus Mesa, Jr., under Bivens for violating the Fourth and Fifth Amendments.

A 5-4 Court, divided along conventional ideological lines, ruled that Bivens didn't extend to the case. The Court, in an opinion by Justice Alito, ruled that the case raised a new Bivens context, and that the special factors of foreign affairs, national security, and Congress's failure to provide a remedy for this or similar claims all counseled against extending a Bivens remedy to this new context.

The ruling wasn't surprising, given the Court's most recent foray into Bivens, in Ziglar v. Abbasi. In that case, the Court limited Bivens to all but the precise three contexts where the Court has recognized a Bivens remedy (Bivens itself, a congressional staffer's Fifth Amendment claim of dismissal based on sex, and a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment). Just to underscore how little remains of Bivens, the Court there noted that if these claims came up today, the Court would likely rule differently.

Justice Thomas concurred, joined by Justice Gorsuch, arguing that the Court should do away with Bivens entirely.

Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. She argued that the case did not arise in a new Bivens context, and even if it did, special factors don't counsel against a Bivens remedy. After all, she argued, the case is about whether a federal officer violated the Constitution when he shot and killed the child while on U.S. soil, under U.S. law--and does not intrude on the other branches' conduct of foreign affairs or national security.

February 27, 2020 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, February 20, 2020

Check it Out: Sunstein on an Independent Justice Department

Check out Cass Sunstein's piece at the NYT, arguing that it's time to (re)consider creating an independent Justice Department by statute (and not just by tradition). 

February 20, 2020 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Tuesday, February 18, 2020

D.C. Circuit Rebuffs HHS's Approval of Arkansas Work Requirements for Medicaid

The D.C. Circuit last week ruled that HHS Secretary Azar's approval of Arkansas's proposed work required for Medicaid recipients was arbitrary and capricious in violation of the Administrative Procedure Act. The ruling vacates the Secretary's approval and means that the work requirements can't move forward, at least unless and until the Secretary provides an explanation for authorization that's consistent with the Medicaid Act.

We last posted on this case (and a similar case out of Kentucky) here. (After the district court ruled against Kentucky's approval, that state dropped its program and moved for voluntary dismissal.)

The case arose when Arkansas sought HHS approval for a work-requirement demonstration project for its Medicaid program. The project would mean that Medicaid recipients in the state would have to work, with some exceptions, in order to continue to receive Medicaid.

HHS Secretary Azar approved the project. State residents sued, arguing that the approval was arbitrary and capricious in violation of the APA. The district court agreed, and last week the D.C. Circuit affirmed.

Like the district court, the circuit court said that Secretary Azar's explanation for approving the project didn't square with the purpose of Medicaid, to provide medical assistance. Here's the long and short of it:

Instead of analyzing whether the demonstration would promote the objective of providing coverage, the Secretary identified three alternative objectives: "whether the demonstration as amended was likely to assist in improving health outcomes; whether it would address behavioral and social factor that influence health outcomes; and whether it would incentivize beneficiaries to engage in their own health care and achieve better health outcomes." These three alternative objectives all point to better health outcomes as the objective of Medicaid, but that alternative objective lacks textual support. Indeed, the statute makes no mention of that objective.

While furnishing health care coverage and better health outcomes may be connected goals, the text specifically addresses only coverage. . . . That means that Congress selected to achieve the objectives of Medicaid was to provide health care coverage to populations that otherwise could not afford it. 

February 18, 2020 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, February 17, 2020

Check it Out: DOJ Alumni Letter Calling for AG Barr's Resignation

Here's the letter that's getting so much attention. And here's the gist:

Although there are times when political leadership appropriately weighs in on individual prosecutions, it is unheard of for the Department's top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here--after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.

Such behavior is a grave threat to the fair administration of justice.

February 17, 2020 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, February 7, 2020

D.C. Circuit Tosses Congressional Members' Foreign Emoluments Suit Against Trump

The D.C. Circuit ruled today that 215 Members of Congress who brought a suit against President Trump for violations of the Foreign Emoluments Clause lacked standing to sue. As a result, the court ordered the case dismissed.

The ruling is a significant victory for President Trump. But it wasn't a ruling on the merits, and other Emoluments Clause cases are still pending against the President in two other circuits.

We last posted on the case here. In short, Members argued that President Trump failed to gain congressional approval and thus violated the Foreign Emoluments Clause for taking money from foreign governments for stays and services at his properties. President Trump moved to dismiss for lack of standing, among other reasons. The district court denied the motion; the D.C. Circuit today reversed.

The ruling was concise. The court simply held that the case was governed by Raines v. Byrd, in which the Supreme Court held that Members of Congress lacked standing to challenge the Line Item Veto Act. Here's how the D.C. Circuit applied Raines:

This case is really no different from Raines. The Members were not singled out--their alleged injury is shared by the 320 members of the Congress who did not join this lawsuit--and their claim is based entirely on the loss of political power. . . .

The Supreme Court's recent summary reading of Raines that "individual members" of the Congress "lack standing to assert the institutional interests of a legislature" in the same way "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole," Virginia House of Delegates v. Bethune-Hill, puts paid to any doubt regarding the Members' lack of standing.

The plaintiffs can appeal to the full D.C. Circuit and to the Supreme Court.

February 7, 2020 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Check it Out: Entous and Osnos on Assassination

Check out Adam Entous's and Evan Osnos's piece in The New Yorker, Qassem Suleimani and How Nations Decide to Kill. Here's from the piece:

The President's dismissal of the question of legality [of Suleimani's killing] betrayed a grim truth: a state's decision to kill hinges less on definitive matters of law than on a set of highly maleable political, moral, and visceral considerations. In the case of Suleimani, Trump's order was the culmination of a grand strategic gamble to change the Middle East, and the opening of a potentially harrowing new front in the use of assassination.

February 7, 2020 in Executive Authority, International, News, Separation of Powers | Permalink | Comments (0)

Tuesday, January 21, 2020

OLC Says House Committees Lack Subpoena Power in Impeachment Investigation

The Office of Legal Counsel opined this weekend that House committees investigating articles of impeachment last fall against President Trump lacked legal authority to issue subpoenas to administration officials.

The opinion, dated January 19, appears to attempt to provide legal bases to President Trump's defenders in the Senate, who argue that the administration's categorical decision to ignore those subpoenas did not constitute obstruction of Congress (but instead was based on legal reasons why the subpoenas themselves were invalid).

The OLC memo is not the law, however; it's merely an opinion. Still, it gives President Trump's defenders legal arguments why his non-cooperation did not constitute obstruction.

(OLC's reasoning is quite formalistic--characteristic of this administration when arguing over congressional authority to investigate anything. For a different take--one that recognizes that there's not always a bright line between Congress's powers of oversight and its power of impeachment--check out this analysis by the Congressional Research Service.)

In short, OLC reasoned this way:

(1) Speaker Pelosi announced on September 24, 2019, that "the House of Representatives is moving forward with an official impeachment inquiry;"

(2) that announcement did not legally authorize an actual impeachment inquiry, because the full House didn't vote to authorize such an inquiry;

(3) House committees nevertheless issued subpoenas after September 24 under their impeachment-investigation authority and their general investigative and oversight authority;

(4) those subpoenas could not have been issued validly under the committees' impeachment authority, because, as in (2), there was no legally authorized impeachment inquiry;

(5) when the House came around to authorize an impeachment inquiry, it didn't ratify the earlier-issued subpoenas, so they are still invalid; and

(6) the committees lacked authority to issue the subpoenas under their general investigative and oversight authorities.

 

January 21, 2020 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, January 16, 2020

Daily Read: GAO Finds Executive Wrongfully Withheld Funds to Ukraine

In its Report issued today, the United States Government Accountability Office found that the Executive wrongfully withheld funds Congress appropriated to Ukraine.

The Report begins:

Office of Management and Budget—Withholding of Ukraine Security Assistance

B-331564 January 16, 2020

In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.

Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.

The Report explains the constitutional and statutory frameworks, including the ICA, thusly:

The Constitution specifically vests Congress with the power of the purse, providing that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. Id., art. I, § 7, cl. 2, 3. The President is not vested with the power to ignore or amend any such duly enacted law. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (the Constitution does not authorize the President “to enact, to amend, or to repeal statutes”). Instead, he must “faithfully execute” the law as Congress enacts it. U.S. Const., art. II, § 3.

An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability. See B-329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold). In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA. See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).

The Constitution grants the President no unilateral authority to withhold funds from obligation. See B-135564, July 26, 1973. Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA. See 2 U.S.C. §§ 681–688. The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”4 2 U.S.C.§ 684. The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”5 2 U.S.C. § 683.

In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal. 2 U.S.C. §§ 683–684. These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA. See 2 U.S.C. §§ 683–684; B-237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).

The burden to justify a withholding of budget authority rests with the executive branch.

The Report found that the Executive did not meet that burden.

Obviously, this Report will not end the matter. The security funds to Ukraine are at the core of the impeachment of the President by the House of Representatives; the Articles of Impeachment are being delivered to the Senate for trial. Moreover, the Report itself ends by discussing the problem of the Executive's lack of cooperation: 

OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.

We consider a reluctance to provide a fulsome response to have constitutional significance. GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse. We trust that State and OMB will provide the information needed.

[emphasis added].

 

January 16, 2020 in Congressional Authority, Current Affairs, Executive Authority, Separation of Powers | Permalink | Comments (0)

Wednesday, January 15, 2020

District Court Halts Trump Order Allowing Cities, States to Veto Refugee Resettlement

Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.

President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.

The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:

[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.

The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")

The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.

The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.

January 15, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)