Category Archives: Executive Branch

A citizen’s guide to the limits of presidential power

From the blurb for The Limits of Presidential Power: A Citizen’s Guide to the Law (Manheim & Watts, Jan. 11, 2018) by Lisa Manheim and Kathryn Watts:

This one-of-a-kind guide provides a crash course in the laws governing the President of the United States. In engaging and accessible prose, two law professors explain the principles that inform everything from President Washington’s disagreements with Congress to President Trump’s struggles with the courts, and more. Timely and to the point, this guide provides the essential information every informed civic participant needs to know about the laws that govern the president–and what those laws mean for those who want to make their voices heard.

— Joe

On the American Deep State

Here’s the abstract for Jon D. Michaels’ The American Deep State, 93 Notre Dame Law Review ___ (2018):

Given the mood of the nation, there is good reason to reject the very premise of an American deep state. This is especially true so long as the concept serves primarily as fodder for conspiracy-mongering and fuel for the domestic culture wars. Yet such a wholesale rejection of the “deep state” label comes at the expense of accuracy, nuance, and opportunity. In truth, we do have—and have long enjoyed—bureaucratic depth. And Donald Trump, more than any other president, has brought into relief its legal and political raisons d’être.

This Essay insists that the American deep state has very little in common with those regimes—think Egypt, Turkey, and Pakistan—usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial or caste incentives to subvert popular will; that demotic depth of the American variety should be celebrated, not feared; and that, going forward, we need greater not lesser depth insofar as the American bureaucracy serves an important, salutary, and quite possibly necessary role safeguarding our constitutional commitments and enriching our public policies.

— Joe

ProPublica and WNYC Studios launch 12-episode ‘Trump, Inc.’ podcast series

The first episode in the 12-episode podcast series, produced ProPublica and WNYC Studios, grapples with conflicts of interest by starting at the very beginning: the January 11, 2017 press conference when Trump announced how he would handle potential conflicts of interest as both President and the owner of the Trump Organization.

According to ProPublica’s announcement, upcoming episodes with include (1) the record fines a Trump casino received around money laundering; (2) stories on the company’s foreign deals and financing; (3) a look into the Russian money trail; and much more.

Here’s the link to the Trump, Inc. podcast series. — Joe

CRS report: Resolutions to Censure the President: Procedure and History

From the introduction to Resolutions to Censure the President: Procedure and History (Feb. 1, 2018 R45087):

Censure is a reprimand adopted by one or both chambers of Congress against a Member of Congress, President, federal judge, or other government official. While Member censure is a disciplinary measure that is sanctioned by the Constitution (Article 1, Section 5), non-Member censure is not. Rather, it is a formal expression or “sense of” one or both houses of Congress. As such, censure resolutions targeting non-Members use a variety of statements to highlight conduct deemed by the resolutions’ sponsors to be inappropriate or unauthorized.

Resolutions that attempt to censure the President for abuse of power, ethics violations, or other behavior, are usually simple resolutions. These resolutions are not privileged for consideration in the House or Senate. They are, instead, considered under the regular parliamentary mechanisms used to process “sense of” legislation.

H/T to beSpacific. For links to additional CRS reports on this topic, see the LLB post. — Joe

Guide to online presidential resources

From the introduction to Lisa DeLuca’s Presidential research resources: A guide to online information, College & Research Libraries News, v. 79, n. 2, p. 93, Feb. 2018:

This article highlights the breadth of freely available digital collections of presidential documents. These repositories are excellent resources for presidential, political science, history, and foreign relations research. From the resources listed in this article, librarians can choose multiple starting points for student and faculty research inquiries for primary and secondary sources that include handwritten documents by the founding fathers, interview transcriptions, digitized documents, and photographs, to name a few. This article does not contain public opinion, election, or media content sources, which are an important component of presidential research.

H/T to beSpacific. — Joe

Fact check: Trump’s State of the Union address, a project of The Annenberg Public Policy Center, reports that President Trump exaggerated his accomplishments in last night’s State of the Union address. Here’s the text of the SOTU speech annotated by NPR. — Joe

Methods of selecting presidential nominees: From peer review to populism in democratic institutional design

According to Stephen Gardbaum and Richard H. Pildes in Populism and Democratic Institutional Design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies, New York University Law Review, 2018, Forthcoming, Donald Trump would most likely not be President but for the institutional change made in the 1970s in the nature of the presidential nomination process. From the article’s conclusion:

This Article should be read against the rise of the populist forces, including illiberal and authoritarian ones, that are currently roiling numerous long-established democracies. Populist alienation, anger, and hostility toward government and political elites are not unexpected in the aftermath of the financial crisis that began in 2007; as economic historians have shown in studies of democracies going back to 1870, financial recessions—which endure much longer and are therefore more painful than ordinary economic recessions—regularly spawn a rise in populist politics and parties, in left and right variations. Add to these economic dislocations the cultural challenges posed in many countries by the dramatic rates of increase of immigration (legal and illegal) in recent years, as well as the opportunities created by the rise of social media, and the challenge to traditional politics and parties is even less surprising.

Here’s the abstract:

In the 1970s, the United States shifted almost overnight from the methods that had been used for nearly 200 years to select party nominees, in which official representatives of the political parties played the major role in deciding the parties’ candidates for President, to a purely populist mode (primaries and caucuses) for selecting presidential nominees. This article explores the contrast between nomination processes that entail a central role for “peer review” – in which party leaders have a central voice in the selection of their parties’ nominees – and purely populist selection methods, such as currently used in the United States, in which ordinary voters completely control the selection of nominees and party figures have no special role.

The first half of the article is historical and focuses on the United States. The second half is comparative and explores how other major democracies structure the process of choosing party leaders and candidates for chief executive. In the historical sections, we seek to show both how radical the change was that was made in the 1970s and yet how accidental, contingent, and inadvertent this transformation was. The “framers” of these changes did not actually intend to create the system with which we ended up, in which the primaries and caucuses completely determine the parties’ nominees. The comparative sections show that the U.S. system is an extreme outlier among major democracies: in no other democracy is the selection completely controlled by the mass of ordinary voters. Most other democracies use systems of pure peer review to select candidates for chief executive; or use systems that mix elements of peer review with popular participation; and in other ways continue to give official representatives of the parties much greater say than in the United States over the selection of the parties’ nominees for Chief Executive.

The institutional design through which democracies choose nominees who compete to become a nation’s Chief Executive is among the most consequential features in the design of democratic elections. Yet there is surprisingly little scholarship that explores this issue in detail. This article also contributes to the general analysis of the rise of populist politics in many democracies today by showing how the institutional design for how party nominees are chosen can enable or constrain how easily and quickly populist political forces are able to capture control of government.

Interesting. — Joe

Is a President Immune from Criminal Prosecution Before Impeachment?

Eric M. Freedman’s The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment? ___ Hastings Constitutional Law Quarterly ___ (1992) argues that a sitting President is subject to criminal indictment. From the abstract:

Part I reviews what is known about the history of the issue at the time of the adoption of the Constitution. It brings to light the previously unremarked fact that there was explicit disagreement on this point.

Part II examines national historical practice since the ratification of the Constitution, and finds that all high federal officeholders-through and including the Vice President-have been uniformly considered subject to criminal prosecution while in office.

Part III examines the two-fold nature of the Impeachment Clause, separating issues of political suitability to hold office from those of criminal liability for wrongdoing, and then turns to the regime of civil but not criminal immunity that has been developed in the case of other officeholders. Amenability of the President to criminal prosecution while in office would be consistent with the letter and spirit of the immunity cases. More significantly, that result would be justified by both an understanding of “the rule of law,” as a frame both for curbing the bad officeholder and for displaying the virtue of the good one.

Part IV considers and rejects, on factual and legal grounds, a series of practical objections: (A) the argument that indicting the President would effectively constitute a removal from office in derogation of the constitutional exclusivity of the impeachment remedy, (B) the threat that the President might be subject to frivolous prosecutions, and (C) the danger that fear of criminal liability might chill the President from the vigorous discharge of duty.

The conclusion is that criminal prosecution of a sitting President is constitutional, and might be a useful option under certain circumstances.

— Joe

The effect of Trump’s election on hate crimes

From the abstract for Stephen Rushin and Griffin Sims Edwards’ The Effect of President Trump’s Election on Hate Crimes (Jan. 18, 2018):

This Essay empirically evaluates the relationship between Donald Trump’s rise to power and the recent increase in reported hate crimes. A number of critics predicted that President Trump’s divisive rhetoric during the presidential campaign and his subsequent election would embolden hate crime perpetrators, thereby contributing to more hate crimes. Media commentators have dubbed this the Trump Effect.

We find compelling evidence to support the Trump Effect hypothesis. Using time series analysis, we show that Donald Trump’s election in November of 2016 was associated with a statistically significant surge in reported hate crimes across the United States, even when controlling for alternative explanations. Further, by using panel regression techniques, we show that counties that voted for President Trump by the widest margins in the presidential election also experienced the largest increases in reported hate crimes.

Using the data from this study, we offer a novel theory that builds on the existing literature on the causes of hate crimes. We hypothesize that it was not just Trump’s inflammatory rhetoric throughout the political campaign that caused hate crimes to increase. Rather, we argue that it was Trump’s subsequent election as President of the United States that validated this rhetoric in the eyes of perpetrators and fueled the hate crime surge.

— Joe

Measuring the ‘Scalia-ness’ of Trump’s SCOTUS shortlist

From the abstract of Jeremy Kidd and Ryan Walters’ Searching for Scalia in 2018: Measuring the ‘Scalia-ness’ of President Trump’s Supreme Court Shortlist (Jan. 20, 2018):

With rumors of a retirement this summer on the Supreme Court, President Trump may have another chance to fulfill his campaign pledge to nominate justices “in the mold of Justice Scalia.” By initial accounts, he fulfilled that promise with the nomination of Justice Gorsuch, whose early tenure on the Court has been described as rather Scalia-like. Subsequently, the President has expanded his list of potential nominees to twenty-five. However, not all on that shortlist may be similarly “in the mold of Justice Scalia.” We thus updated our previous study measuring the Scalia-ness of the potential nominees. We added Judges Brett Kavanaugh and Amul Thapar. We improved the three original measures: originalism, textualism, and writing separately. We also added three additional measures that were characteristic of Justice Scalia: ghostwriting (the degree clerks play a role in writing a judge’s opinions); years as a law professor; and percentage of one’s life outside of D.C. Finally, for comparison’s sake, we included the lower court records of Chief Justice Roberts and Justices Alito, Sotomayor, and Gorsuch.

We then used these variables to create two versions of the Scalia-ness Index. The simple version merely includes originalism and textualism, the most important and defining of Scalia’s traits. The complex version includes all six variables, but with originalism and textualism weighted significantly more than the other two process-based variables, and with the two background-based variables weighted the least. The results confirmed that as far as being a judge like Justice Scalia, the Trump short-listers are not created equal. In fact, there is a wide gulf between the top six and the rest. And of those top six, third through sixth place were lumped together, followed by a significant gap to second place, and then a rather hefty distance to the most Scalia-like of the short-listers.

Given the abstractness of the Scalia-ness Index Scores, using percentiles we translated the scores into 2017 income and IQ scores. For example, for the complex Index, then-Judge Gorsuch would have been third with a 2017 income of $60,008, followed closely by three other judges ranging from $58,016 to $60,001. (The trailing short-listers ranged from $21,381 to $32,157, with then-Judge Roberts bringing up the rear.) As to the two judges ahead of Gorsuch, they were the equivalent of a 2017 income of $75,597 and $292,372, respectively. The simple Index produced similar results. If Scalia-ness had been an Olympic speed skating race, it would have been a boring one: the gold medal winner finishing all by himself, followed sometime later by the silver medalist all by himself, followed by a pack of four fighting for bronze, followed by everyone else lagging rather far behind.

President Reagan used to say, “Trust, but verify.” Under the assumption that the best predictor of future behavior is past behavior, some judges empirically appear that they’ll be more Scalia-like than others if placed on the Supreme Court. Past Republican Presidents have often relied on too much trust and too little verification in judicial nominations, with disastrous results, including but not limited to David Souter and John Paul Stevens. We strongly recommend the White House demand proof of Scalia-ness. Here is some. Additionally, and more broadly, we argue that since data-driven decision-making has transformed the rest of the world, it should begin to play a more prominent role in decisions about judicial nominees. Doing so will provide more predictive power to the vetting process. The methodology we employ here provides an example of what could be done going forward.

— Joe

CRS FAQ on the State of the Union Address

History, Evolution, and Practices of the President’s State of the Union Address: Frequently Asked Questions (Jan. 12, 2018 R44770): The State of the Union address is a communication from the President to Congress in which the chief executive reports on the current condition of the United States and provides policy proposals for the upcoming legislative year. The address originates in the Constitution (Article II, Section 3, clause 1), which requires that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” — Joe

Porn star hush money payment yields DOJ and FEC complaints filed by Common Cause

From the press release:

Today, Common Cause filed complaints with the Department of Justice (DOJ) [text] and the Federal Election Commission (FEC) [text] alleging that the payment of $130,000 to Stephanie Clifford (a.k.a. Stormy Daniels), through an LLC, was an unreported in-kind contribution to President Trump’s 2016 presidential campaign committee in violation of the Federal Election Campaign Act. The complaint also asks the agencies to determine whether the payment was made by the Trump Organization or some other corporation or individual, which would additionally make it an illegal in-kind contribution to the campaign. Corporations are prohibited from contributing to federal candidates and individual contributions are limited to $2,700.

— Joe

Democrats push to censure Trump [text]

H.Res. 496 “censures and condemns President Trump for his inadequate response to the violence in Charlottesville, Virginia, on August 12, 2017, for his failure to condemn the White supremacist groups responsible for actions of domestic terrorism, for asserting that “both sides” were to blame and excusing the violent behavior of participants in the Unite the Right rally, and for employing people with ties to White supremacist movements in the White House” and “urges President Trump to fire all White House advisors who have urged him to cater to the White supremacist movement.” Introduced on Aug. 18, 2017, H.Res. 496 now has 134 cosponsors, all Democrats. Here’s the text. — Joe

Censuring the President: Selected CRS reports

Censure of the President by the Congress (December 8, 1998 98-843): “Exploring a possible compromise between an impeachment and taking no congressional action, certain Members of Congress and congressional commentators have suggested a congressional “censure” of the President to express the Congress’ disapproval of the President’s conduct which has been the subject of an ongoing independent counsel investigation. This report provides an overview and discussion of the legal basis and congressional precedents regarding a congressional “censure” of the President.”

Congressional Consideration of Resolutions to “Censure” Executive Branch Officials (September 14, 2017 IN10774): “Over the history of the federal Congress, Members have proposed resolutions to formally express the House or Senate’s censure, disapproval, loss of confidence, or condemnation of the President or other executive branch official or their actions. This Insight summarizes the parliamentary procedures the House and Senate might use to consider a resolution to censure or condemn an executive branch official and provides links to additional reading material on the subject.

Two Types of “Censure” Resolutions

An important distinction should be made between two types of “censure” resolutions: (1) resolutions expressing the sense of the House or Senate that the behavior or actions of an executive branch official should be condemned or censured and (2) resolutions that censure a Member of Congress for “disorderly behavior,” including ethical violations.

Resolutions that censure officials of the executive branch for abuse of power or inappropriate behavior, including ethical violations, are usually simple resolutions of the House or Senate. Such resolutions, however, are distinct in an important way from the simple resolutions by which either chamber may censure one of its own Members, even though the reasons for censure may be similar. Article I, Section 5, of the Constitution grants each chamber the power to discipline its own members, and resolutions censuring a Senator or Representative are based on this power. Resolutions censuring an official of another branch, on the other hand, are merely expressions of the sense of the House or the Senate about the conduct of an individual over whom Congress has no disciplinary authority (except through impeachment). Consequently, both houses treat these two types of “censure” resolutions very differently in a parliamentary sense. Resolutions of either type, however, have been rare.”

Also, Resolutions Censuring the President: History and Context, 1st-114th Congresses (September 14, 2017 IN10775). — Joe

Trump’s erosion of political norms and constitutional conventions

Here’s the abstract for Neil Siegel’s Political Norms, Constitutional Conventions, and President Donald Trump:

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal role in sustaining the Constitution. Part I discusses political norms and constitutional conventions, including how they are alike, how they are different, and why they matter in the United States notwithstanding the existence of a written constitution. Part II substantiates this Essay’s claim that President Trump has consistently disrespected numerous political norms and constitutional conventions. The Conclusion suggests that the jury is still out on how successful President Trump will be in eroding political norms and constitutional conventions.

— Joe

AG Sessions renews war on weed

From the press release: “The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents.” Here’s the text of AG Sessions’ Jan. 4, 2017 marijuana enforcement memorandum to all U.S. attorneys.

For commentary and analysis of this development, see this Marijuana Law, Policy & Reform post by OSU Law Prof Douglas Berman. — Joe

Trump’s ‘National Security Strategy’ released; based on Trump speeches says White House

The New York Times reports that “the strategy … is the first comprehensive effort by his administration to describe an all-encompassing strategic worldview. Administration officials said it was drawn from speeches Mr. Trump had delivered during the presidential campaign, in Europe and Asia and at the United Nations.”

Here’s the text: National Security Strategy (Dec. 18, 2017). — Joe

Eight impeachable offenses: Legal grounds for launching House Judiciary Committee investigation

“The purpose of impeachment is not to punish for past crimes, but to remove from office a dangerous official who threatens the rule of law and the republic itself,” wrote Ron Fein, John Bonifaz, and Ben Clements in their Take Care blog post about their new white paper, The Legal Case for a Congressional Investigation on Whether to Impeach President Donald J. Trump (Free Speech for People, Dec. 6, 2017).

The paper’s purpose is to summarizes the legal grounds for Congress to pass a resolution calling on the House Committee on the Judiciary to investigate whether sufficient grounds exist for the impeachment of President Trump. From the abstract:

President Trump’s abuse of power and corruption of the presidency are far worse than the Watergate scandal and the abuses that gave rise to the proposed articles of impeachment against President Richard Nixon that were reported out of the Judiciary Committee of the House of Representatives shortly before Nixon resigned. Abuse of power, corruption, and the threat to our republic are manifest today. They require a thorough and deliberate investigation in the House of Representatives. The factual summaries of the grounds for impeachment are based on publicly reported facts, including statements made by President Trump himself, and testimony to Congress. The legal analysis is based on the text, structure, and history of the Constitution and federal law, and legal and political precedent.

In the white paper, the authors identify eight impeachable offenses that could be grounds for a congressional investigation:

  1. Obstructing justice;
  2. Violating the Foreign Emoluments Clause and Domestic Emoluments Clause of the United States Constitution;
  3. Conspiring with others to commit crimes against the United States involving the solicitation and intended receipt by his presidential campaign of things of value from a foreign government and other foreign nationals, and to conceal those violations;
  4. Advocating illegal violence, giving aid and comfort to white supremacists and neo-Nazis, and undermining constitutional protections of equal protection under the law;
  5. Abusing the pardon power;
  6. Recklessly threatening nuclear war against foreign nations, undermining and subverting the essential diplomatic functions and authority of federal agencies, including the United States Department of State, and engaging in other conduct that grossly and wantonly endangers the peace and security of the United States, its people and people of other nations, by heightening the risk of hostilities involving weapons of mass destruction, with reckless disregard for the risk of death and grievous bodily harm;
  7. Directing or endeavoring to direct law enforcement, including the Department of Justice and the Federal Bureau of Investigation, to investigate and prosecute political adversaries and others, for improper purposes not justified by any lawful function of his office, thereby eroding the rule of law, undermining the independence of law enforcement from politics, and compromising the constitutional right to due process of law; and
  8. Undermining the freedom of the press.

Recommended. — Joe

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