Category Archives: Executive Branch

Tit-for-Tat Tariff Measures and U.S. Trade Policy

An excerpt from the CRS Report, Tit-for-Tat Tariff Measures and U.S. Trade Policy (IN10927 July 11, 2018):

As a result of Section 232 investigations launched by the Administration, the United States has unilaterally applied new tariffs on steel (25%), aluminum (10%), and potentially auto imports from the EU, Canada, Mexico, China, and other countries. Some countries were exempted, generally based on quota agreements to limit the amount of steel and/or aluminum exports to the United States. The last time a president had taken restrictive trade action under this law was based on a 1983 petition submitted by the U.S. machine tool industry.

— Joe

Who is Brett Kavanaugh?

Here’s four profile pieces to read more about Trump’s nominee for the Supreme Court.

Brett Kavanaugh, Trump’s Supreme Court pick, has sided with broad views of presidential powers, Washington Post, July 9, 2018

Brett Kavanaugh: Everything you need to know about Trump’s new Supreme Court candidate, Independent, July 10, 2018

Who is Judge Brett Kavanaugh? Trump’s Supreme Court nominee, Boston.com, July 10,2018

Who Is Brett Kavanaugh, President Trump’s Pick For The Supreme Court?, NPR, July 9, 2018

— Joe

CRS Reports on the Supreme Court Appointment Process

Here are five CRS reports that address the Supreme Court appointment process:

  1. Supreme Court Vacancies: Frequently Asked Questions, March 31, 2016 R44440
  2. President’s Selection of a Nominee for a Supreme Court Vacancy: Overview, June 27, 2018 IN10923
  3. Supreme Court Appointment Process: President’s Selection of a Nominee, June 27, 2018 R44235
  4. Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, March 17, 2017 R44236
  5. Supreme Court Appointment Process: Senate Debate and Confirmation Vote, October 19, 2015 R44234

— Joe

Trump’s Corrupt Use of the Pardon Power

From the abstract for Mark Greenberg and Harry Litman, Trump’s Corrupt Use of the Pardon Power, Lawfare, June 19, 2018:

In no aspect of his presidency has Trump acted more immorally and done more damage to the rule of law and constitutional norms than in his exercise of the pardon power. He has granted only five pardons, far fewer than any modern president at a comparable stage. And the immediate practical consequences of these pardons have been modest relative to the havoc he has wreaked with other endeavors — for example, his all-out assault on federal law enforcement institutions. But his pardons violate core principles of justice and appear designed to settle scores with enemies and to encourage allies to resist cooperation with the Mueller investigation. At times, Trump appears almost gleeful about using the pardon power in a manner directly contrary to its purpose.

Three of his pardons — the recent surprise grant to conservative political commentator Dinesh D’Souza; the April grant to Scooter Libby, former adviser to Vice President Dick Cheney; and the pardon of Sheriff Joe Arpaio last August — involve grave abuses of presidential power. Each of these pardons was a debasement of the pardon power and an egregious affront to constitutional norms and the rule of law.

— Joe

Can Trump Obstruct Justice?

From the abstract for Mark Greenberg, Can Trump Obstruct Justice?, NYR Daily, Jan. 4, 2018:

Can a president commit obstruction of justice by terminating a criminal investigation? This question has become critical to the future of the Trump presidency.

When considering whether it is possible for the president to commit obstruction of justice by terminating an investigation, legal experts feel the pull of two conflicting ideas. On the one hand, it seems clear that a president who orders subordinates to lie to the FBI, destroys evidence, or bribes witnesses has committed obstruction of justice. This idea leads to the straightforward view that if the president acts with the corrupt purpose required for obstruction of justice, he can be guilty of that crime just as anyone else can. This republican view of presidential powers is probably the one held by most experts.

On the other hand, one may think that surely the president must be special by virtue of the Constitution’s broad grant of executive power. The executive branch would be unduly hampered if there were constant scrutiny of the president’s motives in exercising his authority. But an embrace of this idea without qualification leads to a royalist view of presidential powers.

Several others — including two former Justice Department officials, David B. Rivkin Jr. and Lee A. Casey, writing in The Wall Street Journal, but most notably Harvard Law professor emeritus Alan Dershowitz — have advocated a more nuanced position that seems to reconcile the two conflicting ideas, what I call the protected act view. Dershowitz rejects the royalist position: a president who lies to the FBI or authorizes the bribery of a witness is not exercising a power granted to the president by the Constitution, and therefore can be guilty of obstruction of justice. At the same time, Dershowitz argues that presidential actions “within [the president’s] constitutional authority,” such as firing an executive official or terminating an investigation, cannot be an obstruction of justice; in fact, a president acting within that authority, regardless of his purposes, cannot violate the law.

The protected act view has important implications for a potential impeachment proceeding. The constitutional standard for an impeachable offense — “treason, bribery, or other high crimes and misdemeanors” — is best understood to require serious official misconduct, but not the commission of a crime. But since Dershowitz’s protected act view implies that any presidential termination of an investigation is constitutionally authorized, impeachment for such an action could not be legally permissible. The view thus implies a constitutional bar to impeachment as well as to criminal prosecution.

The protected act view suffers from two fundamental flaws. First, despite Dershowitz’s insistence to the contrary, it means that there is very little the president would not have constitutional authority to do. As I explain, the view comes close to collapsing into the royalist view, allowing the president to commit what would otherwise be serious crimes with impunity. Second, sound constitutional interpretation does not support the view’s central claim. Moreover, the legitimate concern that the president’s purposes should not be subjected to constant scrutiny by Congress or the courts can be substantially accommodated without accepting the extreme position that any presidential exercise of power is legally permissible.

— Joe

CRS Report on Trump’s plan to reorganize the federal government

From The Trump Administration’s Reform Plan and Reorganization Recommendations (IN10920, June 26, 2018):

On June 21, 2018, the Office of Management and Budget (OMB) issued Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations (the Reform Plan). The Reform Plan followed from Executive Order 13781, “Comprehensive Plan for Reorganizing the Executive Branch,” issued by President Donald J. Trump on March 13, 2017, and an OMB memorandum, M-17-22, “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce,” issued on April 12, 2017

The 32 cross-agency proposals include, for example, those that would
•merge the Departments of Education and Labor;
•move certain nutrition assistance programs from the Department of Agriculture (USDA) to the Department of Health and Human Services;
•move the Army Corps of Engineers Civil Works from the Department of Defense (DOD) to the Department Transportation and the Department of the Interior (DOI);
•transfer the food safety functions of the Food and Drug Administration and those of USDA to a single agency within USDA;
•merge the National Marine Fisheries Service, which is part of the National Oceanic and Atmospheric Administration at the Department of Commerce (DOC), with the Fish and Wildlife Service at DOI;
•combine certain development finance tools, including those of the Overseas Private Investment Corporation and the Development Credit Authority of the U.S. Agency for International Development (USAID) into a newly established Development Finance Institution;
•comprehensively reorganize the headquarters bureaus and independent offices of USAID;
•move the policymaking functions of the Office of Personnel Management (OPM) to the Executive Office of the President;
•reorganize the U.S. Census Bureau, the Bureau of Economic Analysis, and the Bureau of Labor Statistics under the Under Secretary of Commerce for Economic Affairs;
•sell the transmission assets owned and operated by the Tennessee Valley Authority and the power marketing administrations within the Department of Energy;
•restructure the U.S. Postal Service to improve sustainability or prepare it to be converted to a private corporation;
•consolidate the management of graduate research fellowships of smaller federal agencies in the National Science Foundation;
•transition the business and recordkeeping practices of federal agencies to electronic government; and
•transfer the National Background Investigations Bureau from OPM to DOD

— Joe

NPR’s annotated list of potential SCOTUS nominees

President Trump said Wednesday he intends to nominate a replacement for retiring Supreme Court Justice Anthony Kennedy from a list of names he first compiled during his 2016 campaign. Here’s NPR’s annotated list of potential SCOTUS nominees. — Joe

The Equal Protection Doctrine in the Age of Trump: The Example of Unaccompanied Immigrant Children

From the abstract of Rebecca Delfino’s The Equal Protection Doctrine in the Age of Trump: The Example of Unaccompanied Immigrant Children, 84 Brooklyn Law Review ___ (Feb. 2018):

The Equal Protection Doctrine — the right of equals to equality — has taken on renewed relevance since the 2016 federal election cycle. The values of equality and due process, expressed in the Fourteenth Amendment and Fifth Amendment to the United States Constitution, are currently under siege. Laws and institutions central to the core functions of the federal government have been dismantled, repealed or ignored. In this climate, legislative and executive regulatory solutions are not viable, and the traditional means to remedy inequities and discrimination may no longer work. The only way to protect the long-held democratic value of equality is to challenge the actions that offend it in court.

In the federal immigration law context, the Special Immigrant Juvenile Status (SIJS) statute, a law intended to provide a pathway for undocumented immigrant children to obtain a legal residency in the United States, is offered as a current example of equal protection concerns: the SIJS legal framework, as applied, treats these children unequally. This article is the first to propose that this legal framework violates the constitutional guarantees of equal protection; and it presents the novel and unique argument that in the age of Trump, the time is ripe for an equal protection legal challenge to the SIJS law. Unprecedented times call for unprecedented measures.

— Joe

Does the phrase “High … Misdemeanors” mean breach of fiduciary duty?

According to Impeachment: The Constitution’s Fiduciary Meaning of “High . . . Misdemeanors”, Federalist Society Review, the answer is “yes.”  From the article’s conclusion:

We best capture the meaning of the phrase “high . . . Misdemeanors” when we think of it as referring to breaches of fiduciary duty. High misdemeanors are not limited to commission of crimes, but they do not include mere political differences. While violations of the criminal law provide grounds for impeachment, high misdemeanors encompass breaches of the duties of loyalty, good faith, and care, and of the obligations to account and to follow instructions (including the law and Constitution) when administering one’s office.

— Joe

AALL denounces refugee family separations as repulsive

Speaking on behalf of our association AALL President Greg Lambert is quoted in the June 20, 2018 press release:

“This administration continues to take actions regarding immigrants and asylum seekers that go well beyond long-standing legal precedent and limit access to justice for those most in need of guidance and representation. AALL is committed to issues of diversity, community and collaboration. We are, as a legal organization, repulsed by this policy of separating families at the border. This practice is antithetical to AALL’s mission and sense of justice, and we call on the entire legal community to highlight this gross human rights violation and demand immediate change.”

— Joe

Running afoul of the Flores Settlement Agreement [text and CRS reports]

Trump’s executive order ending the separation of refugee families detained in the US may run afoul of the Flores settlement because Flores requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Here’s the text of Flores v. Meese – Stipulated Settlement Agreement Plus Extension of Settlement.

Here’s links to two recent CRS reports:

Unaccompanied Alien Children: An Overview (R43599, Jan. 18, 2017)

Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions (R43623, Jan. 27, 2016)

— Joe

Trump administration withdraws US from UN Human Rights Council

In yet another effort by the Trump administration to pull away from international organizations and agreements that it finds objectionable, yesterday the US withdrew from the UN Human Rights Council, citing as its reason the Council’s frequent criticism of Israel’s treatment of Palestinians. The Trump administration also likely wants to distance itself from a body critical of its own policies. New York Times story here. The Atlantic profiles the Human Rights Council here. — Joe

The complex history of indicting a President

From Walter Dellinger’s Indicting a President Is Not Foreclosed: The Complex History, Lawfare, June 18, 2018:

Can a sitting president be indicted? Often, in answering this question, commentators point to Office of Legal Counsel (OLC) opinions answering in the contrary. To whatever extent the writer agrees or disagrees with the opinions’ conclusion, the government’s position on the matter is usually presented as a long-standing and clear “no.”

The reality is more complicated. The United States has addressed this question six times in both internal memos and briefs filed in litigation. And a review of these documents shows that it is far from clear what criminal prosecution steps are (or should be) precluded—and that there is no “longstanding policy” against indictment of the president.

Interesting. — Joe

State AGs and former US Attorneys call for reversal of zero-tolerance policy [text]

Current and former state and federal prosecutors are calling on Attorney General Jeff Sessions to reverse his zero-tolerance policy targeting families who have illegally entered the United States’ southern border. Here’s the text of the State AGs letter and here’s the text of the former US attorneys. — Joe

DOJ’s Zero-Tolerance Policy for Criminal Illegal Entry [text]

On April 6, 2018, Attorney General Jeff Sessions notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. Here’s the DOJ AG memo. — Joe

A Constitutional Role Morality for the Trump Era and Beyond

From the abstract for Neil Siegel’s Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for the Trump Era and Beyond, Georgetown Law Journal, Forthcoming:

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

— Joe

Mother Jones charts show how white, male, and conservative Trump’s judicial nominees have been

The Trump administration has installed a record-breaking number of judges, reshaping the courts for decades. Senate Republicans spent the end of Barack Obama’s term running out the clock on his picks for federal judges. So when Trump took office, he faced a nearly unprecedented number of vacant judgeships—and an opportunity to roll back gains in diversity and remake the federal courts for decades as evident in these charts, created by Mother Jones, which show white, male, and conservative Trump’s judicial nominees have been. — Joe

Take Care Blog’s Analysis of Emoluments Issues & Cases

Take Care presents its coverage of all emoluments issues & cases in a single post. They organized their analysis into the following categories:

  • History & Theory of Emoluments
  • CREW Lawsuit
  • Maryland & DC Lawsuit
  • Members of Congress Lawsuit
  • Examples of Corruption & Emoluments
  • Citizen Activism & Emoluments

Recommended. — Joe

A brief history of attorney general recusals

While there is no official compilation of recusals, it appears that Attorneys General of the United States have recused themselves at least 15 times since 1989. A Brief History of Attorney General Recusal (Legal Sidebar, March 8, 2017) presents a chronology of AG recusals. — Joe

UN human rights commissioner condemns Trump Administration family separation policies

Spokesperson for the UN High Commissioner for Human Rights Ravina Shamdasani yesterday issued the following statement about the Trump administration’s policy of separating immigrant families apprehended by immigration officers:

We are deeply concerned that the zero tolerance policy recently put in place along the US southern border has led to people caught entering the country irregularly being subjected to criminal prosecution and having their children – including extremely young children -taken away from them as a result.

The practice of separating families amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child. While the rights of children are generally held in high regard in the US, it is the only country in the world not to have ratified the UN Convention on the Rights of the Child. We encourage it to accede to the Convention and to fully respect the rights of all children.

The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles. The child’s best interest should always come first, including over migration management objectives or other administrative concerns. It is therefore of great concern that in the US migration control appears to have been prioritised over the effective care and protection of migrant children.

Children should never be detained for reasons related to their own or their parents’ migration status. Detention is never in the best interests of the child and always constitutes a child rights violation.

Information from various sources suggests that several hundred children have been separated from their families since last October. The practice of separating children from their parents is being applied to both asylum-seekers and other migrants in vulnerable situations, and we note that the American Civil Liberties Union has brought a class action case on behalf of hundreds of parents who have been forcibly separated from their children.

The majority of people arriving at the U.S.’s southern border have fled Honduras, Guatemala and El Salvador – in many cases either because of rampant insecurity and violence, or because of violations of a range of other rights, such as health, education, and housing.

The US should immediately halt this practice of separating families and stop criminalizing what should at most be an administrative offence – that of irregular entry or stay in the US.

We call on the US authorities to adopt non-custodial alternatives that allow children to remain with their families and fulfil the best interests of the child, their right to liberty and their right to family life.

H/T to Immigration Prof Blog. See also, Law and Farce: The Forced Separation of Families on Take Care Blog. — Joe