Category Archives: Executive Branch

CRS report: Presidential Advisers’ Testimony Before Congressional Committees

From Presidential Advisers’ Testimony Before Congressional Committees: An Overview (Dec. 15, 2014 RL31351):

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

Legal constraints on presidential power

In Law and the President, 125 Harvard Law Review 1381 (2012), Richard Pildes explores the extent to which law constrains the exercise of presidential power, in both domestic and foreign affairs. Since the start of the twentieth century, the expansion of presidential power has been among the central features of American political development. Over the last decade, however, scholars across the political spectrum have argued that presidential powers have not just expanded dramatically, but that these powers are not effectively constrained by law. These scholars argue that law fails to limit presidential power not only in exceptional circumstances (times of crisis or emergency), but more generally; that unconstrained presidential power exists not just with respect to limited substantive arenas, such as foreign affairs or military matters, but across the board; and that statutes enacted by Congress, as well as the Constitution, fail to impose effective constraints. — Joe

The Congressional Oversight Manual

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. Towards that end, CRS developed the Congressional Oversight Manual over 30 years ago. The Manual was produced by CRS with the assistance of a number of House committee staffers. The constitutional authority for Congress to conduct oversight is designed to fulfill a number of purposes:

  • Ensure Executive Compliance with Legislative Intent
  • Evaluate Program Performance
  • Prevent Executive Encroachment on Legislative Prerogatives and Powers
  • Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
  • Assess Agency or Officials’ Ability to Manage and Carry Out Program Objectives
  • Review and Determine Federal Financial Priorities
  • Ensure That Executive Policies Reflect the Public Interest
  • Protect Individual Rights and Liberties

— Joe

Trump and trade agreements

On January 23, President Trump directed the United States Trade Representative to withdraw the United States as a signatory to the Trans-Pacific Partnership (TPP) agreement; the acting USTR gave notification to that effect on January 30. And on May 18, 2017, the Trump Administration sent a 90-day notification to Congress of its intent to begin talks with Canada and Mexico to renegotiate the North American Free Trade Agreement (NAFTA).

Two CRS Insight Reports cover the TPP and NAFTA developments: The United States Withdraws from the TPP (May 23, 2017, IN10646) and North American Free Trade Agreement: Notification for Renegotiation (May 19, 2017 IN10706). — Joe

Three states start the United States Climate Alliance to fulfill Paris Climate Agreement commitments

In the wake of the news that the US is withdrawing from the Paris Climate Agreement, Barak Obama called on states, cities and businesses to support and honor the terms of the Agreement: “even in the absence of American leadership; even as this Administration joins a small handful of nations that reject the future; I’m confident that our states, cities, and businesses will step up and do even more to lead the way, and help protect for future generations the one planet we’ve got.” Quoting from Obama slams Trump for leaving Paris climate agreement, Politico, June 1, 2017.

In a joint public statement, Washington state Governor Jay Inslee, California Governor Jerry Brown and New York Governor Andrew Cuomo announced the United States Climate Alliance’s formation as a means for some of the largest US state economies to fight back against the Trump administration’s plans to withdraw from the Paris Climate Agreement. The governors are inviting other states and cities to join the alliance as a means of fulfilling the nation’s prior commitment to the Paris agreement in defiance of Trump. Seven additional states — Colorado, Connecticut, Hawaii, Massachusetts, Oregon, Rhode Island and Virginia — plus 61 cities have already expressed support for the objectives of the Alliance. US mayors, governors vow to stick with Paris accord, CNN, June 1, 2017.

Doable if other states and cities join this alliance? Well, Art. 1, Sec. 10 of the Constitution forbids interstate “alliances” and requires Congress’s consent for interstate “compacts.” If triggered, would a Republican-controlled Congress approve? — Joe

Trump administration’s first budget released

Following up on President Trump’s budget blueprint, the Trump administration released an ideological wish list, its first budget on May 23rd. See A New Foundation for American Greatness – President’s Budget FY 2018 and Major Savings and Reform. It now heads to the House where opposition from Trump’s own party is expected. Politico reports that House Speaker Paul Ryan is standing by his alternative tax reform plan which includes a controversal “border adjustment tax” that would put a 20 percent tax on imports coming into the U.S. See The battle over the border tax. Talking points to sell the Ryan tax reform plan were released recently.

Referencing Trump’s budget blueprint, CNN identified many of Trump’s proposed budget cuts as did the New York Times here. See also, The Key Spending Cuts and Increases in Trump’s Budget, NYT, May 22, 2017. — Joe

End Note: Browse all the FY2018 budget documents here.

Suggested articles of impeachment for President Trump

The time has come for Congress to act and for leaders on both sides of the aisle to put country before party and politics. Speaker Paul Ryan and Majority Leader Mitch McConnell ought to, in cooperation with Democratic leaders, begin the sequence of events that would likely lead to impeachment and removal proceedings for Trump. Given that this is unlikely, Democrats should make clear of their intentions to do what is necessary under our Constitution should they win back control of the House of Representatives in 2018. This process should be as full, fair, and transparent as our Constitution requires. Anything less would demean and harm the country even more than Trump has already done. — Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017

Echoing similar sentiments, Keith E. Whittington warns “If the impeachment power is perceived to be little more than a partisan tool for undermining elected officials and overturning election results, then the value of elections for resolving our political disagreements is significantly reduced. We do not want to be in a situation in which neither side trusts the other to continue adhering to the most basic democratic norms of abiding by election results.” Keith E. Whittington, An Impeachment Should Not Be a Partisan Affair, Lawfare, May 16, 2017.

Short of the Democrats winning a majority of seats in the House in the 2018 congressional elections, it is hard to imagine the Republican controlled House of Representatives bringing articles of impeachment against President Trump because impeachment has been a partisan political action for quite a while now. See Richard K. Neumann, Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Constitutional Law Quarterly 161 (2007). But if viewed as a thought experiment, Phillip Carter has offered a “first draft” of an impeachment bill. The drafted articles of impeachment he identifies are listed below:

Article 1: Compromising the integrity of the presidency through continuing violation of the Constitution’s Emoluments Clause.

Article 2: Violation of his constitutional oath to faithfully execute the duties of his office by disregarding U.S. interests and pursuing the interests of a hostile foreign power, to wit, Russia.

Article 3: Impairment and obstruction of inquiries by the Justice Department and Congress into the extent of the Trump administration’s conflicts of interests and Russia ties.

Article 4: Undermining of the American judicial system through felonious intimidation of potential witnesses.

Article 5: Undermining of his office and the Constitution through repeated assaults on the integrity of the federal judiciary and its officers.

Article 6: Demeaning the integrity of government and its public servants, particularly the military and intelligence agencies, in contravention of his constitutional duties to serve as chief executive and commander in chief of the armed forces.

Looks comprehensive to me. See Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017 for his explanations for each draft article of impeachment . See also, The Republican’s Guide to Presidential Behavior, New York Times editorial, May 13, 2017 (“What do Paul Ryan, Mitch McConnell and other Republican leaders think a president may say or do and still deserve their enthusiastic support? We offer this handy reference list in hopes of protecting them from charges of hypocrisy in the future. They can consult it should they ever feel tempted to insist on different standards for another president.”)  — Joe

Fitness to serve: Presidential disability under the 25th Amendment

Presidential disability is viewed by some as a long-shot alternative to impeachment for removal of a sitting president. Sections 3 and 4 of the 25th Amendment govern cases of presidential disability. Under section 3, if the President declares (in a written declaration to the Speaker of the House of Representatives and the President pro tempore of the Senate) that he is disabled for any reason, the Vice President assumes his powers and duties as Acting President. Section 4 provides for cases in which the President may not be able to transmit a disability declaration. In these circumstances, the Vice President and the cabinet or “such other body as Congress may by law provide” can, by majority vote, declare the President to be disabled. It also empowers the President to declare his disability ended, again by written declaration, and resume his powers and duties. If, however, the Vice President and a majority of either the cabinet or other Section 4 body, rule otherwise, then Congress decides the issue. A vote of two-thirds of both houses within 21 days is required to determine the President to be disabled and continue the disability; otherwise, he resumes his powers and duties. Neither section 3 nor section 4 has been invoked since the amendment was ratified.

According to the CRS report, Presidential Disability: An Overview (July 12, 1999, RS20260) “Constitutional historians note that the [disability] clause does not define disability or differentiate between it and inability, although contemporary dictionaries characterized the former as a complete lack of power, and the latter as lack of ability to do a certain thing. Further, while specifying who acts as President in the event of presidential disability (the Vice President), the clause provides no guidance on how it would be invoked, by whom, or for what length of time, or on how a disability could be terminated or rescinded.”

In Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment, 30 Journal of Law and Politics 97 (2014), Daniel J. T. Schuker offers an approach to understanding, classifying, and assessing cases of presidential disability by distinguishing between (1) persistent or temporary physiological incapacity; (2) persistent or temporary logistical incapacity; (3) persistent or temporary physiological impairment; and (4) persistent or temporary logistical impairment. “During crises of presidential disability, administrations have felt obliged to devise ad hoc solutions. The framework developed here poses three basic questions to formulate a legal diagnosis of a President’s condition: How severe is the disability? When is the disability expected to end? Where is the disability located? The new framework indicates, based on a given diagnosis, who — either the President or the Vice President with other designated officials — would be best positioned to determine whether to invoke the Twenty-Fifth Amendment. This systematic approach, grounded in historical experience, should mitigate the uncertainties of what has so often proved a politically charged and disorderly process.” — Joe

Reality checks on impeachment talks

Within the last 24 hours, both Time and NPR outlined conditions under which President Trump might be impeached after the recent disclosure of the existence of Comey’s CYA memo of his private meeting with President Trump about the Flynn investigation. In How Difficult Would It Be to Impeach President Trump? Time’s Katie Reilly identified the following conditions as necessary:

  1. Impeachment talk would need to be taken seriously
  2. Critics would need to settle on one argument
  3. There would need to be more evidence
  4. The House would need to decide there are grounds for impeachment
  5. The Senate would need to find the President guilty
  6. There would need to be public support for impeachment

In Trump Impeachment Talk Grows From Conspiracy Theory To Mainstream, NPR’s Domenico Montanaro writes that “a lot has to happen — and a lot of facts gathered — before anyone gets down the road to impeachment.” Steps to the possible road to impeachment include:

  1. The memo has to be produced
  2. Comey has to testify on the record and in public about the memo and the meeting
  3. There have to have many willing Republicans to go along
  4. Is this obstruction of justice?

Wait and see. — Joe

CRS reports on special counsels, independent counsels and special prosecutors

On May 11, 2017, the Congressional Research Service released Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch. From the introduction:

Under constitutional principles and authorities, Congress has no direct role in federal law enforcement and is limited in its ability to initiate appointments of any prosecutor for any particular matter in which there may be allegations or concerns about wrongdoing by public officials. Instead, criminal investigations and prosecutions have generally been viewed as a core executive function and are a responsibility of the Executive Branch. However, because of the potential conflicts of interest that may arise when the Executive Branch investigates itself, as a historical matter there have often been calls for an independently led inquiry to determine whether executive officials have violated criminal law. In the past, Congress has authorized independent counsels, who were requested by the Attorney General and appointed by a judicial panel, but that authority lapsed in 1999. Currently, the Attorney General has regulatory authority to appoint a special counsel to investigate allegations that may present a conflict of interest for the Department of Justice (DOJ).

Focusing on the role of Congress, see also, Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress (June 20, 2013, R43112). This report provides information on the procedure for the appointment of an “independent counsel,” a “special prosecutor,” or a “special counsel” to investigate and prosecute potential or possible violations of federal criminal law by officials in the executive branch of the federal government and in federal agencies. Specifically examined is the role or authority of Congress in requiring an independent or special counsel investigation of executive branch officials.

— Joe

Presidential claims of executive privilege

We’re probably going to hear a lot about the Trump administration’s attempts to claim executive privilege in the coming months as the Russia probe progresses. By citing Comey’s private conversations in Trump’s termination letter to Comey, for example, has President Trump undermined any future claims of executive privilege to them?

Quoting from the CRS report, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments (Dec. 15, 2014 R42670):

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution.

Supreme Court decisions have left considerable gaps in the law of presidential privilege. Among the more significant issues left open include whether the President must have actually seen or been familiar with the disputed matter; whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the executive branch, outside of the Executive Office of the President; whether the privilege encompasses all communications with respect to which the President may be interested or is confined to presidential decision making and, if so, whether it is limited to a particular type of presidential decision making; and precisely what kind of demonstration of need must be shown to overcome the privilege and compel disclosure of the materials.

— Joe

CRS report on the legal framework for protecting classified information

The Protection of Classified Information: The Legal Framework (Jan. 10, 2013, RS21900) provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. — Joe

CRS report on the appointment and tenure of the FBI director

The FBI director is appointed by the President by and with the advice and consent of the Senate. The position of FBI Director has a fixed 10-year term, and the officeholder cannot be reappointed, unless Congress acts to allow a second appointment of the incumbent. There are no statutory conditions on the President’s authority to remove the FBI Director. FBI Director: Appointment and Tenure (Feb. 19, 2014, R41850) provides an overview of the development of the process for appointing the FBI director. — Joe

Tribe: “It’s now up to Congress to save the Constitution by initiating impeachment proceedings. Trump can’t say ‘You’re fired’ to the House of Reps.”

“This is a tense and uncertain time in the nation’s history. The president of the United States, who is no more above the law than any other citizen, has now decisively crippled the F.B.I.’s ability to carry out an investigation of him and his associates. There is no guarantee that Mr. Comey’s replacement, who will be chosen by Mr. Trump, will continue that investigation; in fact, there are already hints to the contrary.” — New York Times editorial, Donald Trump’s Firing of James Comey (May 9, 2017)

On May 9, 2017, President Trump fired former FBI director James Comey. Here’s a document that includes President Trump’s letter to Director Comey, AG Sessions’ letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey. See also, Annotated letter: The Trump administration’s case for firing FBI Director James Comey, Los Angeles Times, May 10, 2017.

In the wake of that news, Democrats in Congress — and a few Republicans — rose to demand a special prosecutor for the Russia investigation last night. More Than 100 Lawmakers Respond to Comey Firing by Calling for Independent Russia Probe, Mother Jones, May 9, 2017. Some people went even further.

Last evening Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School called on House Speaker Ryan to begin an impeachment proceeding immediately in this tweet: “Not even a special counsel whom Trump can sack will suffice. If Ryan has any integrity at all he MUST initiate an impeachment inquiry NOW!” Tribe followed up this morning, tweeting “This fox is emptying the henhouse. Trump has crossed the line. He is covering up high crimes and misdemeanors” and in another tweet Tribe wrote “It’s now up to Congress to save the Constitution by initiating impeachment proceedings. Trump can’t say “You’re fired” to the House of Reps.”

Special prosecutor or impeachment inquiry, what do you think? — Joe

End Note: An LLB backgrounder on impeachment resources can be found here.

CRS report on statutory qualifications for Executive Branch positions

Of the 556 key senior level positions requiring Senate confirmation, the Trump administration has no nominee yet for 465 positions according to the Washington Post’s appointments tracker. See Tracking how many key positions Trump has filled so far, an interactive database-driven tool for monitoring key appointments. (Of course there are many more less senior level positions still unfilled as well.)

Nominees for many of the unfilled senior level positions must meet qualifications mandated by Congress. “The preponderance of evidence and historical practice suggests that Congress generally has the constitutional authority to establish statutory qualifications for federal government positions.” Quoting from the conclusion of the CRS report, Statutory Qualifications for Executive Branch Positions (Sept. 9, 2015, RL33886). The report adds

Although Congress enjoys broad discretion in this area, there appears to be consensus that it may not set qualifications that limit the President’s selection to the extent that the appointment is a de facto legislative designation. Neither case law nor statute has established a bright line that clearly defines the boundaries of this authority. Within this somewhat ambiguous environment, Congress, at times, has enacted standards that limit the President’s selection pool to a greater extent than the executive branch sees as legitimate.

This CRS report provides examples of department and agency leadership positions with statutory qualification requirements and similar examples for independent collegial bodies, such as regulatory boards and commissions. At the other end of the spectrum, see the GAO’s Characteristics of Presidential Appointments that do not Require Senate Confirmation (GAO-13-299R, Mar 1, 2013). — Joe

With the emoluments lawsuit proceeding, interest in presidential impeachment is on the rise

With the emoluments lawsuit proceeding, interest in presidential impeachment is increasing. The impeachment process provides a mechanism for removal of the President found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives. Should the House vote to impeach and vote articles of impeachment specifying the grounds upon which impeachment is based, the matter is then presented to the Senate for trial. Under the Constitution, the Senate has the sole power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.”

For background see these CRS reports, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice (Dec. 9, 2010, 98-186) and Impeachment and Removal (Oct. 29, 2015, R44260). See also, Frank O. Bowman and Stephen L. Sepinuck, ‘High Crimes & Misdemeanors’: Defining the Constitutional Limits on Presidential Impeachment, 72 Southern California Law Review 1517 (1999)(Arguing there are impeachable offenses for which Congress may constitutionally and properly decide not to impeach or remove a President.) and Michael J. Gerhardt’s The Lessons of Impeachment History, 67 George Washington Law Review 603 (1999)(“[M]y focus has been to clarify what constitutional structure and history has to teach us about the process of impeachment. … These lessons in turn help to clarify the kinds of questions that members of Congress should ask and the kinds of factors members of Congress should take into consideration when trying to decide whether to impeach and remove the President of the United States.”)

End Note: What role might SCOTUS play in a presidential impeachment? Presidential Impeachment: The Legal Standard and Procedure (Findlaw) notes that “the Supreme Court of the United States has decided that it should not review judicial impeachments, using the ‘political question’ doctrine to sidestep the issue. Walter Nixon v. United States, 506 U.S. 224 (1993). Concurring opinions by Justice White and Justice Souter in this case offer the following dicta on presidential impeachments:

The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable. See Walter Nixon v. United States, 506 U.S. at 244. As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

“Finally, as applied to the special case of the President, the majority’s argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis.”

This view is echoed by Justice Souter in his concurring opinion in the same case: “If the Senate were to act in a manner seriously threatening the integrity of its results…judicial interference might well be appropriate.” Walter Nixon v. United States, 506 U.S. at 253.

— Joe

CRS report on the legal framework for withdrawing from international agreements

From Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement (February 9, 2017 R44761):

The legal procedure through which the United States withdraws from treaties and other international agreements has been the subject of long-standing debate between the legislative and executive branches. Recently, questions concerning the role of Congress in the withdrawal process have arisen in response to statements made by President Donald J. Trump that he may consider withdrawing the United States from certain high-profile international commitments. This report outlines the legal framework for withdrawal from international agreements under domestic and international law, and it examines legal issues related to the potential termination of two agreements that may be of significance to the 115th Congress: the Paris Agreement on climate change and the Joint Comprehensive Plan of Action (JCPOA) related to Iran’s nuclear program.

Although the Constitution sets forth a definite procedure whereby the Executive has the power to make treaties with the advice and consent of the Senate, it is silent as to how treaties may be terminated. Moreover, not all agreements between the United States and foreign states are made through Senate-approved, ratified treaties. The President also enters into executive agreements, which do not receive the Senate’s advice and consent, and “political commitments,” which are not binding under domestic or international law. The legal procedure for withdrawal often depends on the type of agreement at issue, and the process may be further complicated when Congress has enacted legislation implementing the agreement into domestic law.

— Joe

Benchmarking the first 100 days of Donald Trump’s presidency

It’s day 98 in the Trump presidency, meaning the countdown to 100 days is almost over. The Trump administration issued multiple fact sheets earlier this week to support its claim that “[a]t an historic pace, this President has enacted more legislation and signed more executive orders than any other president in over a half century.” Quoting from President Trump’s 100 Days of Historic Accomplishments. Due note that the White House is not comparing its accomplishments with FDR’s first 100 days back in 1933.

In his NYT op-ed piece, Donald Trump’s First 100 Days: The Worst on Record, David Leonhardt recently wrote:

Here’s my reading of Trump’s start: It’s the least successful first 100 days since the concept existed. … Even if you forget about the content of his actions — whether they strengthened or weakened the country — and focus only on how much he accomplished, it’s a poor beginning. His supporters deserve to be disappointed, and his opponents should be cheered by how unsuccessful his agenda has been so far.

So which is it, 100 days of historic accomplishments or the least successful 100 days since FDR? To determine for oneself, one might want to check one or more “Trump trackers.” Both the Washington Post’s tracker and this one use Donald Trump’s Contract with the American Voter to identify and then monitor Trump’s individual promises for his first 100 days.  — Joe

Perhaps not as easy as first thought: Court blocks part of Trump’s sanctuary cities executive order

A federal judge on Tuesday blocked enforcement of part of President Donald Trump’s executive order to deny federal funding to sanctuary cities that refuse to help the government detain and deport immigrants. The court issued a nationwide injunction to block enforcement of Section 9(a) of E.O. 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 30, 2017), the provision that would allow the federal government to withhold funding from sanctuary jurisdictions. Text of Decision. For an analysis, see Steven D. Schwinn’s Constitutional Law Prof Blog post.

Prior to the court ruling, the administration’s latest effort to clamp down on sanctuary jurisdictions came on April 21st when the DOJ sent letters to nine jurisdictions demanding proof of compliance with 8 USC 1373. According to the DOJ press release:

The letters remind the recipient jurisdictions that, as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373. The Department of Justice expects each of these jurisdictions to comply with this grant condition and to submit all documentation to the Office of Justice Programs by June 30, 2017, the deadline imposed by the grant agreement.

The piecemeal implementation of Trump’s executive order, should it ever be enforceable, is the topic of Sanctuary Jurisdictions and Select Federal Grant Funding Issues: In Brief (March 16, 2017, R44789). This report discusses questions that might be raised regarding the implementation of Trump’s EO 13768 by federal grant-making agencies on the impact of federal grant funding for designated sanctuary jurisdictions. The CRS report observes

Because of the complexity of implementing a centralized policy such as the EO through the decentralized structure of federal grants administration practices, there is uncertainty in determining the impact of the EO on federal grant funding for sanctuary jurisdictions. The impact could be affected by the discretion exercised by the Attorney General and the Secretary [of Homeland Security] in defining a “federal grant,” determining which programs are exempted because of providing necessary funding for law enforcement purposes, and determining what constitutes a “sanctuary jurisdiction.” The impact of the EO on federal grant funding could also be affected by how federal grant awarding agencies utilize discretion in administering the grant programs, including review of eligibility and conditioning federal grant awards.

End Note. See also this CRS report, Executive Orders: Issuance, Modification, and Revocation (April 16, 2014, RS20846) which discusses executive orders with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance, and  this LLB post for links to additional CRS reports on sanctuary jurisdictions. For additional background, see Darla Cameron’s How sanctuary cities work, and how Trump’s executive order might affect them (Washington Post, Jan. 25, 2017). — Joe

Impeachment talk: idle or serious threat?

Time’s Katie Reilly offers a backgrounder on impeachment in the context of the Trump presidency in How Difficult Would It Be to Impeach President Trump? In the article, Reilly observes “Bush and Obama both faced idle impeachment threats that never amounted to anything. People who now believe there’s a serious case for impeaching Trump will have to overcome the reputation established by those who raise the specter of impeachment merely to demonstrate political opposition.” — Joe