Category Archives: Executive Branch

AG Sessions muzzles DOJ from explaining how federal law applies

It has come to my attention that the Department has in the past published guidance documents- or similar instruments of future effect by other names, such as letters to regulated entities- that effectively bind private parties without undergoing the rulemaking process.

The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entiti es outside the Executive Branch (including state, local, and tribal governments). — Jeff Sessions, Attorney General of the United States, Nov. 16, 2017 Memorandum

The DOJ has announced that it will no longer issue guidance on the federal laws it enforces and that it will review existing guidance to identify those that should be rescinded. Lawfare’s Eve Hill writes:

The memorandum is couched in terms of eliminating guidance that circumvents the rulemaking process by imposing new binding obligations on covered entities without notice-and-comment rulemaking. But the instructions of the memorandum go much further – they forbid the Department from using “shall,” “must,” “required,” or “requirement” and require the Department to state that all guidance is non-binding. This effectively muzzles the experts on federal law from explaining how the law applies in specific contexts. It threatens to leave covered entities in the dark when, in good faith, they apply the law to new situations they face on the ground.

— Joe

Trump’s Unified Agenda of Federal Regulatory and Deregulatory Actions

From The Trump Administration and the Unified Agenda of Federal Regulatory and Deregulatory Actions (Nov. 29, 2017 R45032):

Donald J. Trump promised that if he were elected President, he would instruct federal agencies to reduce their regulations significantly. As of late 2017, this deregulation was underway in agencies across the federal government.

The Trump Administration’s first Unified Agenda, which was issued on July 20, 2017, and was referred to by the Administration as the “Update to the 2017 Unified Agenda of Federal Regulatory and Deregulatory Actions,” contains information on many deregulatory actions that the Trump Administration has undertaken so far. For example, the Agenda lists 469 actions that agencies have withdrawn since the previous (Fall 2016) edition of the Unified Agenda and 22 major and/or economically significant actions that were reclassified from “active” under the Barack Obama Administration to “long-term” under the Trump Administration. The 2017 Update lists a total of 58 economically significant “active” actions, as compared to 113 such actions that had been published in the Fall 2016 edition.

This report provides an overview of the Unified Agenda, discusses the additional significance of the Unified Agenda in the Trump Administration, provides summary information about content of the 2017 Update, and discusses what additional information can be expected in the subsequent edition of the Agenda.

You can view the current Unifed Agenda here. — Joe

Shutdown of the Federal Government: CRS Report

In the past, there have occasionally been funding gaps that led to government shutdowns, the longest of which lasted 21 full days, from December 16, 1995, to January 6, 1996. The most recent shutdown began October 1, 2013, and lasted for a total of 16 full days. Will there be another government shutdown later this month? Perhaps with an abundance of caution, the Congressional Research Service has updated Shutdown of the Federal Government: Causes, Processes, and Effects (RL 34680 Nov. 30, 2017). From the report:

Government shutdowns have necessitated furloughs of several hundred thousand federal employees, required cessation or reduction of many government activities, and affected numerous sectors of the economy. This report discusses

  • causes of shutdowns, including the legal framework under which they may occur;
  • processes related to how agencies may plan for the contingency of a shutdown;
  • effects of shutdowns, focusing especially on federal personnel and government operations; and
  • issues related to shutdowns that may be of interest to Congress.

This CRS report is intended to address questions that arise frequently related to the topic of government shutdowns. However, the report does not closely track developments related to the appropriations process for a given fiscal year.

H/T to beSpacific — Joe

Categorizing Trump and his administration

“The key to Trump’s essential meaning, to his mode of politics and type of government, lies in the obvious elements of his crony capitalist worldview, business dynasty, and close cadre of advisors and cabinet members drawn from his family and his financial peers,’ wrote Timothy Kuhner in his thoughtful essay, American Kleptocracy: How to Categorize Trump and His Government (2017). King’s Law Journal, Vol. 28, No. 2, p. 201-238 (2017). Here’s the abstract:

Even after just one year’s worth of events, the Trump Presidency is proving extraordinarily difficult to pin down. Prominent concerns rightly center on racism, sexism, xenophobia, the rule of law, Russian election interference with collusion from within the Trump campaign itself, the obstruction of justice, the fracturing of both dominant political parties, nuclear war, and the global rise of authoritarian populism. Is there any defining element to this presidency, which so justly raises all of these concerns? President Trump’s election has proven similarly difficult to pin down, essentially for the same reason — the presence of a host of factors, all with a bearing on the result. Sorting through the evidence about Trump’s election and his presidency thus far, this article suggests, quite simply, that money and greed are at the heart of it all. Rather than a moral argument, however, this article elaborates a descriptive, legal argument from within the law of democracy that there is a corrupt system of government operating beneath all of the surface-level chaos. Trump’s personal expenditures on his election campaign, conflicts of interest, foreign emoluments, cabinet choices, and legislative proposals all suggest the emergence of a kleptocracy. This article develops kleptocracy as a legal category applicable to the United States today: a system of government that goes beyond interest-group plutocracy in order to tailor law and policy to the economic interests of the political leadership itself, in this case President Trump, his family members, advisors, and cabinet members.

— Joe

Second set of articles of impeachment filed against President Trump

Congressman Steve Cohen (D-TN-09), the ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice, which has jurisdiction over impeachment matters, and four Democratic colleagues, introduced five articles of impeachment against President Donald J. Trump yesterday. The five articles are:

  • Article I – Obstruction of Justice
  • Article II – Violation of Article I, Section 9 of the U.S. Constitution – Foreign Emoluments
  • Article III – Violation of Article II, Section 1 of the U.S. Constitution – Domestic Emoluments
  • Article IV – Undermining the Independence of the Federal Judiciary and the Rule of Law
  • Article V – Undermining Freedom of the Press

Documentation:

End Note: LLB post on first articles of impeachment. — Joe

Countdown to Day 301 under the Federal Vacancies Reform Act of 1998

Of 612 key positions requiring Senate confirmation, no candidate has been nominated by the Trump Administration for 259 positions according to the Washington Post-Partnership for Public Service tracker. Most, if not all, of these key advice and consent positions are occupied by acting officers. For many such situations, the Federal Vacancies Reform Act of 1998, 5 U.S. Code § 3345, limits the amount of time an acting officer may remain in his or her position. According to the CRS Legal Sidebar, Out of Office: Vacancies, Acting Officers, and Day 301 (Nov. 1, 2017 LSB10022):

A number of acting officers are currently filling vacancies that occurred during the presidential transition period. For those offices that were vacant on or shortly after Inauguration Day, the 210-day period, with the 90-day extension [under The Vacancies Act], will come to an end beginning sometime in November. If an acting officer remains in office beyond this 300-day period, and if the President has not submitted any nomination to that office, then the acting officer runs the risk of violating the Vacancies Act.

So if an acting officer was appointment on Jan. 20, 2017, then day 301 is November 17th. According to the CRS analysis here’s what can happen on Day 301:

On Day 301, whenever that day might occur for a particular office, the office would be designated vacant, for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions and duties of that vacant office. (If an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act.) If the acting officer remains in office and attempts to perform a nondelegable function or duty—one that a statute or regulation expressly assigns to that office—that action will “have no force or effect.” In the words of the Supreme Court, it will be “void ab initio”: void from the beginning, as if the act had never been done. (There are a few specifically named offices that are exempt from this provision, but it is unclear what the consequences are if one of those offices is staffed by an acting officer serving in violation of the Vacancies Act.) Critically, the Vacancies Act also prohibits an agency from subsequently ratifying any void actions. This means that the agency can’t cure any violations by reissuing its decision through the proper processes.

For a detailed analysis, see The Vacancies Act: A Legal Overview (Oct. 30, 2017, R44997). — Joe

Understanding and preserving sanctuary cities in the age of Trump

From the abstract of Understanding ‘Sanctuary Cities,’ Boston College Law Review, Forthcoming, by Christopher Lasch et al:

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration’s mass deportation plans and his recently-announced campaign to “crack down” on “sanctuary cities.” We then outline the diverse ways in which localities have sought to protect their residents from deportation by refusing to participate in the Trump immigration agenda. Such initiatives include limiting compliance with immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications for sanctuary that local jurisdictions have advanced with increasing intensity since Trump’s election. These insights have important implications for how sanctuary cities are understood and preserved in the age of Trump.

As a complement to this Article, we have created a public online library of sanctuary policies that includes all the policies cited here and many more we considered in our research.

— Joe

The Legal Problems (So Far) of Trump’s Deregulatory Binge

From the abstract for Lisa Heinzerling’s The Legal Problems (So Far) of Trump’s Deregulatory Binge, Harvard Law & Policy Review, Forthcoming:

In racing to upend a wide array of final rules issued in the Obama administration, the Trump administration has violated basic principles of administrative law. In delaying or suspending rules, agencies in the Trump administration have paid little attention to their legal constraints, failed to provide legally required process before their decisions, and offered flimsy reasoning for their choices. The administration, in other words, has put on the same display of autocracy, impulsivity, and jerry-rigged reasoning that has characterized Mr. Trump’s overall approach to the presidency. Within the constraints of administrative law that apply to such regulatory decisions, however, autocracy, impulsivity, and jerry-rigging are the very kinds of urges that get agencies into legal trouble.

This article examines the legal risks posed by the decision-making style exhibited by the Trump administration so far, with a focus on the administration’s decisions delaying or suspending rules issued by the Obama administration. These early decisions are worth studying for their own sake, as they put the brakes on rules aimed at addressing a broad range of social problems. The decisions are also important for the signals they send about how administrative agencies in the Trump era will go about their business. These early actions portend legal trouble for the administration’s deregulatory push. Agencies in this administration have delayed or suspended existing rules with little attention to legal authority, process, or reason giving, and in doing so have flouted basic requirements of administrative law. The courts have already begun to push back against the administration’s deregulatory binge.

— Joe

How Do We Solve a Problem Like the Donald?

Here’s the abstract for Julie Novkov’s How Do We Solve a Problem Like the Donald? (Sept. 29, 2017):

Political observers have debated whether and how to remove Donald J. Trump from the office of the presidency. This article explains the difficulties associated with both the Twenty-Fifth Amendment’s incapacity route and impeachment. These difficulties illuminate a larger underlying problem with American democracy that the Trump presidency both crystallizes and reinforces: the emergence of an energized core of political participants who unite around racialized identity and reject some core principles of democracy.

— Joe

Presidential administration under Trump

Here’s the abstract for Daniel Farber’s Presidential Administration Under Trump:

In an enormously influential 2001 article about the increasingly dominant role of the President in regulation, then-Professor Elena Kagan celebrated the rise of what she called presidential administration. Recognizing the unpredictability of future developments, however, she observed that “the practice of presidential control over administration likely will continue to evolve in ways that raise new issues and cast doubt on old conclusions.” In that spirit, this Essay reexamines her thesis in light of experience under subsequent presidents, with a particular focus on the Trump Administration.

Though the Trump Administration is still less than a year old, it is not too early to start drawing conclusions about its institutional structure and decision-making processes. These seem to be at odds with Kagan’s assumptions about the implementation of presidential administration. Doctrines must be designed with a range of possible executive behavior in mind, not on the basis of one presidency. But that range has turned out to be broader than many scholars had assumed. The Trump Presidency has highlighted risks to presidential administration that were less evident previously. As a result, we need to recalibrate our expectations about presidential behavior and correspondingly our understanding of the functioning of the executive branch. Thus, we may gain a newfound appreciation for some of the institutions and doctrines such as State Farm that may blunt presidential power and strengthen the role of agencies and their professional staffs.

— Joe

Grab ’em by the emoluments

Here’s the abstract for Lawrence Trautman’s Grab ‘Em By The Emoluments: The Crumbling Ethical Foundation of Donald Trump’s Presidency (Aug. 27, 2017):

Does Donald Trump believe that over 200 years of constitutional law doesn’t apply to him? This paper explores two important areas of U.S. Constitutional law: the constitutional prohibition against acceptance of emoluments (anything of value); and the constitutional provision for presidential impeachment and is written before findings are available from any special investigations or results from the many Congressional inquiries about matters surrounding the Russian tampering with the American 2016 presidential election. Therefore, this article is an inquiry into other matters that raise many serious questions about the ethical fitness of Donald Trump to be President. Among grounds for Trump’s impeachment are his numerous ongoing Emoluments Clause violations. At this time it seems unlikely that President Trump will face impeachment. Given that both the U.S. House of Representatives and Senate are in control of the Republican Party, President Trump should be immune from impeachment proceedings unless the Republican Party leadership determines that it is in their best interest to allow for impeachment and removal, not a zero probability. Will President Trump’s lifelong propensity for lying ultimately lead to his eventual demise?

— Joe

Brookings Institution report: Presidential Obstruction of Justice: The Case of Donald J. Trump

On October 10th, the Brookings Institution released Presidential Obstruction of Justice: The Case of Donald J. Trump (Oct. 10, 2017). From the press release:

In this paper, we break down and analyze the question of whether President Trump may have obstructed justice and explain the criminal and congressional actions that could follow from an obstruction investigation. Addressing the possibility of criminal behavior by President Trump and the complicated issues it raises is not a task that we take lightly. Dissecting allegations of criminality leveled against an individual who has been duly elected president and who has sworn to preserve, protect, and defend our Constitution is an inherently solemn task. But it is our hope that by presenting a rigorous legal analysis of the potential case against the president, we will help the American people and their representatives understand the contours of the issues, regardless of whether it is eventually litigated in a court of law, the halls of Congress, or the court of public opinion.

Recommended. — Joe

Trump’s immigration principles for DACA deal [text]

Here’s the text of the recently released immigration principles proposed by the Trump Administration as the basis for a bipartisan DACA agreement. — Joe

AG Sessions revokes Obama Administration position on transgender employment discrimination claims

The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.

The dispute centers on how to interpret employment protections based on “sex” in Title VII of the Civil Rights Act of 1964. In December 2014, the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view “sex” as encompassing gender identity, extending protections to transgender people.

But in a two-page memo to all United States attorneys and other top officials, Mr. Sessions revoked Mr. Holder’s directive. The word “sex” in the statute, Mr. Sessions said, means only “biologically male or female,” so the Civil Rights Act does not ban “discrimination based on gender identity per se, including transgender status.” Charlie Savage, In Shift, Justice Dept. Says Law Doesn’t Bar Transgender Discrimination, NYT, Oct. 5, 2017

Yesterday the DOJ was instructed by AG Sessions to view transgender people as not protected by Title VII in court cases. Here’s the text of the memo. H/T beSpacific. — Joe

Trump administration enhances extreme vetting capabilities with new travel ban

The Trump Administration issues a new travel ban that revises Executive Order 13780 (March 6, 2017) which expired yesterday. Here’s the text. — Joe

Congressional Research Service on grounds for impeachment [Resources]

The impeachment of Bill Clinton was initiated by the House of Representatives on December 19, 1998, with two charges, one of perjury and one of obstruction of justice. Some six weeks earlier on October 30, 1998, the Congressional Research Service released a six part series of selected background materials pertinent to the issue of what constitutes impeachable misconduct for purposes of Article II, section 4 of the United States Constitution:

I wonder whether this series will be updated in the near, hopefully very near, future. — Joe

ACLU seeks relief from Trump’s transgender ban [Text of complaint]

In response to a presidential directive banning transgender individuals from military service, the ACLU has filed a complaint for declaratory and injunctive relief on the grounds that the transgender ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment. — Joe

House resolution invokes 25th Amendment to “Quickly secure the services of medical and psychiatric professionals to exam the president… .”

Rep. Zoe Lofgren’s (D-Calif.) has introduced a resolution Friday urging President Donald Trump to get a medical and psychiatric examination to determine if he should be removed from office. The resolution calls on Vice President Pence and the members of Trump’s cabinet to “quickly secure the services of medical and psychiatric professionals” to “assist in their deliberations” invoking the 25th Amendment, which outlines presidential removal procedures.

The resolution states:

Quickly secure the services of medical and psychiatric professionals to exam the president to assist in their deliberations under the 25th Amendment to determine whether the president suffers from a mental disorder or other injury that impairs his abilities and prevents him from discharging his Constitutional duties.

— Joe

79 Democratic Members of Congress cosponsor resolution to censure President Trump

From the press release:

Today, Congressman Jerrold Nadler (D-NY), Congresswoman Bonnie Watson Coleman (D-NJ), and Congresswoman Pramila Jayapal (D-WA) introduced a censure resolution in the U.S. House of Representatives against President Donald Trump for his comments blaming “both sides” for the violence in Charlottesville, Virginia and excusing the behavior of participants in the ‘Unite the Right’ rally.

The censure resolution condemns the President for failing to immediately and specifically name and condemn the white supremacist, Ku Klux Klan, and neo-Nazi groups responsible for actions of domestic terrorism in Charlottesville over the weekend, and for doubling-down on his comments by attempting to create a moral equivalency between white supremacists and those counter-protesting the ‘Unite the Right’ rally. The resolution, which was cosponsored by 79 Members of Congress, offers an official censure by Congress of President Trump for his remarks, and calls for the President to fire any and all advisors who have urged him to cater to white supremacist.

Is your Member of Congress among the 79 cosponsor. [List of Cosponsors] As of now, the resolution is not online at Congress.gov. — Joe

Presidential Advisers’ Testimony Before Congressional Committees

From the introduction to the CRS report, Presidential Advisers’ Testimony Before Congressional Committees: An Overview (December 15, 2014, RL31351):

Since the beginning of the federal government, Presidents have called upon executive branch officials to provide them with advice regarding matters of policy and administration. While Cabinet members were among the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various agencies located within that structure resulted in a large increase in the number and variety of presidential advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and instrumentalities could be said to serve as advisers to the President.

Occasionally, these executive branch officials playing a presidential advisory role have been called upon to testify before congressional committees and subcommittees. Sometimes, such invited appearances have been prompted by allegations of personal misconduct on the part of the official, but they have also included instances when accountability for policymaking and administrative or managerial actions have instigated the request for testimony. Because such appearances before congressional committees or subcommittees seemingly could result in demands for advice proffered to the President, or the disclosure—inadvertent or otherwise—of such advice, there has been resistance, from time to time, by the Chief Executive to allowing such testimony.

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe