A federal judge in New York has ruled against the Trump administration’s decision to add a citizenship question to the 2020 census. U.S. District Judge Jesse Furman ordered the administration to stop its plans to include the controversial question on forms for the upcoming national head count “without curing the legal defects” the judge identified in his opinion released on Tuesday. Read the opinion here.
From Pew Research: “Figuring out which of the government’s data streams will continue to flow and which have been stoppered is complicated, not least because some agencies were fully funded before last month’s budget negotiations reached a stalemate, and thus have been able to keep operating. Here’s a look at what data are and are not available during the shutdown, from what we’ve been able to find out via agency release schedules and planning documents, third-party calendars, and our own reporting.”
In Barr memo suggests: To understand the Trump administration, read Hobbes, The Hill suggests that the Barr memo should be read in conjunction with the 2009 Minnesota Law Review article in which then-Judge Brett Kavanaugh argued that, because of the extreme demands of their position, presidents “should be excused from some of the burdens of ordinary citizenship while serving in office.” Read the June 8th Barr memo here.
Attorney General nominee William Barr said that, if confirmed, he would let special counsel Robert Mueller finish his investigation into Russian meddling in the 2016 presidential election and believes the results should be made public. Read his prepared Senate testimony here.
From the introduction of The Special Counsel Investigation After the Attorney General’s Resignation (LSB10237, Jan. 2, 2019):
Recent Department of Justice (DOJ) leadership changes have raised questions about their impact on the special counsel investigation into Russian interference with the 2016 presidential election and related matters. Who will oversee the investigation? How do personnel changes affect the investigation? What are Congress’s possible roles in this matter? Before his resignation, former Attorney General Jeff Sessions had recused himself from the inquiry with Deputy Attorney General Rod Rosenstein serving as Acting Attorney General for the investigation With President Trump’s designation of Matthew G. Whitaker as Acting Attorney General pending Senate consideration of his nominee for Attorney General, supervision of the special counsel investigation may change in the coming months, possibly impacting ongoing litigation regarding the special counsel’s authority. This Sidebar examines how DOJ leadership changes may interplay with the special counsel investigation.
From the introduction to Statutory Inspectors General in the Federal Government: A Primer (R45450, Jan. 3, 2019):
Statutory IGs—established by law rather than administrative directive—are intended to be independent, nonpartisan officials who aim to prevent and detect waste, fraud, and abuse in the federal government. To execute their missions, IGs lead offices of inspector general (OIGs) that conduct various reviews of agency programs and operations—including audits, investigations, inspections, and evaluations—and provide findings and recommendations to improve them. IGs possess several authorities to carry out their respective missions, such as the ability to independently hire staff, access relevant agency records and information, and report findings and recommendations directly to Congress.
President Trump’s pick for attorney general, William Barr, sent the Justice Department an unsolicited memo earlier this year questioning the appropriateness of an obstruction probe special counsel Robert Mueller is said to be conducting of certain Trump actions in the White House. The nearly 19-page memo suggested that, while there are certainly examples of obstructive conduct that could be investigated — destroying or altering evidence, suborning perjury, inducing witnesses to change testimony — President Trump, as far as Barr knew, wasn’t being “accused of engaging in any wrongful act of evidence impairment.” The memo argued that Mueller was pushing an “unprecedented expansion of obstruction law” so that it reaches actions President Trump took that were within the “discretion vested in him by the Constitution.” Read the Barr memo here.
From the summary of Congress’s Authority to Influence and Control Executive Branch Agencies (R45442, Dec. 19, 2018):
The Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created. Even so, the Supreme Court has generally recognized that Congress has broad constitutional authority to establish and shape the federal bureaucracy. Congress may use its Article I lawmaking powers to create federal agencies and individual offices within those agencies, design agencies’ basic structures and operations, and prescribe, subject to certain constitutional limitations, how those holding agency offices are appointed and removed. Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as well as directly counteract, through later legislation, certain agency actions implementing delegated authority.
Judge Emmet Sullivan, on the U.S. District Court for the District of Columbia on Wednesday struck down most of the policies former Attorney General Jeff Sessions issued that made it almost impossible for victims of domestic and gang violence to seek asylum. The court said the policies, which created a stricter test to satisfy the “credible fear” standard for the asylum claims, were unlawful. Judge Sullivan also ordered the government to return to the United States the plaintiffs who were unlawfully deported under the policy. Here’s the opinion.
From the summary for Shutdown of the Federal Government: Causes, Processes, and Effects (RL34680, Dec. 10, 2018):
When federal agencies and programs lack funding after the expiration of full-year or interim appropriations, the agencies and programs experience a funding gap. If funding does not resume in time to continue government operations, then, under the Antideficiency Act, an agency must cease operations, except in certain situations when law authorizes continued activity. Funding gaps are distinct from shutdowns, and the criteria that flow from the Antideficiency Act for determining which activities are affected by a shutdown are complex.
From the abstract for Aaron Rappaport, An Unappreciated Constraint on the President’s Pardon Power (Nov. 30, 2018):
Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited. This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement. That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.
This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power. It also demonstrates that the main objections to the argument – that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive.
Of course, even if a specificity requirement exists, one may wonder about its significance. After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime. Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears. Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.
All of President Trump’s tweets has been compilied and are timely updated by CNN here.
From the abstract for James P. Pfiffner, The Lies of Donald Trump: A Taxonomy:
The most important lies of Donald Trump differ significantly from previous presidential lies. Other presidents have lied for a variety of reasons, from legitimate lies concerning national security to trivial misstatements, to shading the truth, to avoiding embarrassment, to serious lies of policy deception. The paper distinguishes four types of Trump’s lies: 1) trivial lies, 2) exaggerations and self aggrandizing lies; 3) lies to deceive the public; and 4) egregious lies. It then analyzes the consequences of lies with respect to misinformation encoding and the relationship of lies to loyalty and power. The most serious lies of Donald Trump were egregious false statements that were demonstrably contrary to well known facts. The paper concludes that his lies were detrimental to the democratic process, and that his continued adherence to demonstrably false statements undermined enlightenment epistemology and corroded the premises of liberal democracy.
From the abstract for Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, ‘Faithful Execution’ and Article II, Harvard Law Review, Forthcoming:
Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.
This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:
(1) diligent, careful, good faith, and impartial execution of law or office;
(2) a duty not to misuse an office’s funds and or take unauthorized profits; and
(3) a duty not to act ultra vires, beyond the scope of one’s office.
These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.
From the abstract for Alberto Gonzales, Presidential Powers, Immunities, and Pardons, 96 Wash. L. Rev. 1 (2018):
This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal prosecution for unofficial acts or conduct unrelated to his or her fitness to hold office. However, because of separation of powers considerations, the courts are likely to require deferral of any such prosecution until the President no longer holds office.
Although not as clear, constitutional considerations would likely also require deferral of any investigation or indictment, at least those requiring the direct and material participation of the President. On the other hand, the President can be compelled to produce certain documentary evidence when doing so is necessary and would otherwise be unavailable in connection with a criminal investigation. The argument for presidential immunity with respect to production of evidence is stronger, though likely not absolute, with respect to oral testimony. Nonetheless, mindful of the President’s duties, the courts are likely to afford the President great latitude in the time, place, and manner of providing oral testimony. Finally, there is nothing in the Constitution that expressly prohibits or limits the President from issuing a self-pardon.
Who Can Serve as Acting Attorney General (LSB10217, Nov. 15, 2018) discusses the two primary arguments raised to challenge the President’s decision to name Whitaker as Acting AG: first, that the Vacancies Act does not apply because another statute, 28 U.S.C. §508, provides that the Deputy Attorney General (DAG) serves as Acting AG in the event of a vacancy and second, that the Appointments Clause prohibits Whitaker, a non-Senate-confirmed official, from serving as the head of the DOJ.
President Donald Trump has made at least 211 separate arguments about the Russia investigation. To arrive at that number, Time combed over statements from the Trump campaign, transition team and administration and key figures such as Donald Trump Jr. and Trump lawyer Rudy Giuliani to isolate the major arguments. Details here.
In a ruling late Monday, Jon S. Tigar of the U.S. District Court in San Francisco issued a temporary nationwide restraining order barring enforcement of the policy. President Trump’s action was announced on Nov. 9, 2018. The judge’s order remains in effect until Dec. 19, at which point the court will consider arguments for a permanent order. Here’s a copy of the court’s order granting temporary restraining order against Trump administration asylum policy.
Sens. Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.) and Mazie Hirono (D-Hawaii) filed a complaint in the U.S. District Court for the District of Columbia on Monday, claiming that Trump violated the Appointments Clause of the Constitution by choosing Whitaker for a Cabinet-level position even though Whitaker has never been Senate confirmed for a position. The complaint seeks to block Whitaker from serving in the role, which includes overseeing special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
Here’s the abstract for Michael A. Livingston, The Other F-Word: Fascism, The ‘Rule of Law,’ and the Trump Era (Oct. 24, 2018): “This essay considers books that have suggested parallels between 1930s-style fascism and present day politics, especially that of the Trump Administration. The essay concludes that these parallels are generally unconvincing and that, however well-intentioned, they distract attention from needed political reforms.”