Category Archives: Gov Docs

Withheld JFK assassination records faces Oct. 26th disclosure deadline

From President John F. Kennedy Assassination Records Collection: Toward Final Disclosure of Withheld Records in October 2017 (May 26, 2017 IN10709):

The JFK Records Act, 44 U.S.C. 2107 Note, set a deadline of 25 years from its enactment for each assassination record to be publicly disclosed, subject to some limitations. The deadline falls on October 26, 2017, and has raised some interest about the potential extent of disclosure of redacted portions of records that are partially available, and those that are withheld in full. No legislation related to the JFK Records Act has been introduced in the 115th Congress.

The October 26 deadline marks the end of the final, statutorily mandated assessment of assassination records, and might mark the conclusion of a long process of records preservation and assessment for the suitability of their release that began in the days and weeks following President Kennedy’s death. The JFK Records Act prohibited the destruction or alteration of assassination records, and required each government office, including Congress, various investigatory commissions and panels, executive branch entities, independent agencies, courts, and involved state or local law enforcement agencies, to identify and organize its assassination records, determine which were officially disclosed or publicly available in a complete, unredacted form, and which were covered by the Act’s standards for postponement of public disclosure. Officially disclosed records were to be made available immediately in 1992, following enactment of the JFK Records Act.

Visit the JFK Assassination Records Collection hosted by the National Archives. — 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

CRS Report: Congressional Redistricting Law: Background and Recent Court Rulings

Following up on LLB’s SCOTUS tackles constitutionality of partisan gerrymandering, here’s a snip from the summary for Redistricting Law: Background and Recent Court Rulings (March 23, 2017 R44798):

In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

— Joe

CRS Report: Overview of the Federal Government’s Power to Exclude Aliens

From the summary of Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R 44969):

The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge.

The merits of these so-called “Travel Ban” cases raise significant questions about the extent to which the rights of U.S. citizens limit the executive power to exclude aliens. It seems relatively clear that, under existing jurisprudence, the “facially legitimate and bona fide” standard should govern the Establishment Clause claims against the revised executive order. However, Supreme Court precedent does not clarify whether that standard contains an exception that might permit courts to test the government’s proffered justification for an exclusion by examining the underlying facts in particular circumstances. Nor does Supreme Court precedent resolve whether the standard governs U.S. citizens’ statutory claims against executive exercise of the exclusion power, or even whether such statutory claims are cognizable. The outcome of the Travel Ban cases would likely turn upon these issues, if the Supreme Court were to decide the cases on the merits rather than on a threshold question such as mootness (a key issue in light of a presidential proclamation modifying the entry restrictions at issue in the cases).

— Joe

Inspector General reports from across the federal government now available on a single website

The Council of the Inspectors General on Integrity and Efficiency announced the official launch of Oversight.gov. This new website creates a single home for thousands of Inspector General reports from across the federal government.

H/T to Gary Price’s InfoDocket post. — Joe

CRS Report: An Overview of Recent Tax Reform Proposals

From the summary of An Overview of Recent Tax Reform Proposals (Feb. 28, 2017 R44771):

Many agree that the U.S. tax system is in need of reform. Congress continues to explore ways to make the U.S. tax system simpler, fairer, and more efficient. In doing so, lawmakers confront challenges in identifying and enacting policies, including consideration of competing proposals and differing priorities. To assist Congress as it continues to debate the intricacies of tax reform, this report provides a review of legislative tax reform proposals introduced since the 113th Congress.

Although no comprehensive tax reforms have been introduced into legislation yet in the 115th Congress, two 2016 reform proposals appear to be at the forefront of current congressional debates—the House GOP’s “A Better Way” tax reform proposal, released in June 2016, and President Trump’s campaign reform proposal, released in September 2016. As with most recent tax reform proposals, both of these plans call for lower tax rates coupled with a broader tax base. In either case, numerous technical details would need to be addressed before either plan could be formulated into legislation.

— 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

CRS Report: Redeploying U.S. Nuclear Weapons to South Korea: Background and Implications in Brief

Redeploying U.S. Nuclear Weapons to South Korea: Background and Implications in Brief (September 14, 2017 R44950)

From the summary:

Recent advances in North Korea’s nuclear and missile programs have led to discussions, both within South Korea and, reportedly, between the United States and South Korean officials, about the possible redeployment of U.S. nuclear weapons on the Korean Peninsula. The United States deployed nuclear weapons on the Korean Peninsula between 1958 and 1991. Although it removed the weapons as a part of a post-Cold War change in its nuclear posture, the United States remains committed to defending South Korea under the 1953 Mutual Defense Treaty and to employing nuclear weapons, if necessary, in that defense.

The only warheads remaining in the U.S. stockpile that could be deployed on the Korean Peninsula are B61 bombs. Before redeploying these to South Korea, where they would remain under U.S. control, the United States would have to recreate the infrastructure needed to house the bombs and would also have to train and certify the personnel responsible for maintaining the weapons and operating the aircraft for the nuclear mission.

South Korea’s President Moon Jae-in has advocated for more muscular defense options, but does not support the redeployment of U.S. tactical nuclear weapons. The Liberty Korea Party, the main opposition party, has formally called for the move. While some in South Korea believe nuclear weapons are necessary to deter the North, others, including those who maintain hope that North Korea will eliminate its program, argue that their redeployment could make it that much more difficult to pressure the North to take these steps. Further, if North Korea saw the deployment as provocative, it could further undermine stability and increase the risk of conflict on the peninsula.

China would also likely view the redeployment of U.S. nuclear weapons as provocative; it has objected to U.S. military deployments in the past. Some analysts believe that China might respond by putting more pressure on North Korea to slow its programs, while others believe that China might increase its support for North Korea in the face of a new threat and, possibly, expand its own nuclear arsenal. Japan’s reaction could also be mixed. Japan shares U.S. and South Korean concerns about the threat from North Korea, but given its historical aversion to nuclear weapons, Japan could oppose the presence of U.S. nuclear weapons near its territory. In addition, any adjustment of the U.S. military posture on the peninsula could create additional security concerns for Tokyo.

— Joe

CRS Report: Options to Cease Implementing the Iran Nuclear Agreement

Options to Cease Implementing the Iran Nuclear Agreement (September 7, 2017 R44942)

From the summary:

Trump Administration statements indicate that the Administration does not believe that the 2015 multilateral nuclear agreement with Iran, the Joint Comprehensive Plan of Action (JCPOA), addresses the full range of potential threats posed by Iran. Administration officials assert that the Administration is considering ending or altering U.S. implementation of the JCPOA. This report analyzes some of the options the Administration might use to end or alter U.S. implementation of the JCPOA, if there is a decision to do so. These options, which might involve use of procedures in the JCPOA itself or the Iran Nuclear Agreement Review Act (P.L. 114-17), are not necessarily mutually exclusive. This report does not analyze the advantages and disadvantages of any specific option, or examine in detail the implications of any particular course of action.

— Joe

The Iranian nuclear accord: CRS backgrounders

President Trump reportedly has decided on whether or not to certify the multilateral nuclear accord (Joint Comprehensive Plan of Action, or JCPOA) but he won’t as of yet reveal his decision. See this CNN report. For background see this CRS report, Iran Nuclear Agreement (April 21, 2017 R43333). From the report:

The Obama Administration and other P5+1 leaders asserted that the JCPOA represented the most effective means to ensure that Iran cannot obtain a nuclear weapon and that all U.S. options to prevent Iran from developing a nuclear weapon remain available even after the key nuclear restrictions of the JCPOA expire. The JCPOA contains provisions for U.N. sanctions to be reimposed if Iran violates its commitments. Critics of the agreement expressed concerns that the extensive sanctions relief provided under the accord gives Iran additional resources to extend its influence in the region. Critics also assert that the JCPOA did not contain any restrictions on Iran’s development of ballistic missiles. Resolution 2231 prohibits arms transfers to or from Iran, but only for five years, and contains a voluntary restriction on Iran’s development of nuclear-capable ballistic missiles for only up to eight years. The expiration of these restrictions sets the stage for Iran to emerge as a key regional actor. These commitments are stated in U.N. Security Council Resolution 2231. The JCPOA Other critics have said that the JCPOA did not require that Iran cease support for groups that conduct acts of international terrorism.

The Trump Administration has articulated that the United States will seek to counter Iran’s “malign” activities in the region and any other activities that the Administration considers provocative or destabilizing, such as the continued development of ballistic missiles. The Administration has said it is undertaking a “deliberative process” to determine responses to such Iranian activities that would not conflict with implementing U.S. commitments under the JCPOA.

See also, Iran Sanctions (September 15, 2017 RS20871). From the introduction:

The multilateral nuclear accord (Joint Comprehensive Plan of Action, or JCPOA) provides Iran broad relief from U.S., U.N., and multilateral sanctions on Iran’s civilian economic sectors. On January 16, 2016, upon the International Atomic Energy Agency (IAEA) certification that Iran had complied with the stipulated nuclear dismantlement commitments, U.S. Administration waivers of relevant sanctions laws took effect, relevant executive orders (E.O.s) were revoked, and corresponding U.N. and EU sanctions were lifted (“Implementation Day”).

Remaining in place have been those secondary sanctions (sanctions on foreign firms) that have been imposed because of Iran’s support for terrorism, its human rights abuses, its interference in specified countries in the region, and its missile and advanced conventional weapons programs, as well as sanctions on the Islamic Revolutionary Guard Corps (IRGC) and designated commanders, subunits, and affiliates.

— Joe

Should the US continue its active internationalist role? CRS backrounder for Congress

Just days before Trump’s first UN speech [transcript], the Congressional Research Service produced U.S. Role in the World: Background and Issues for Congress (Sept. 15, 2017 R44891). From the introduction:

The overall U.S. role in the world since the end of World War II in 1945 (i.e., over the past 70 years) is generally described as one of global leadership and significant engagement in international affairs. A key aim of that role has been to promote and defend the open international order that the United States, with the support of its allies, created in the years after World War II. In addition to promoting and defending the open international order, the overall U.S. role is generally described as having been one of promoting freedom, democracy, and human rights, while criticizing and resisting authoritarianism where possible, and opposing the emergence of regional hegemons in Eurasia or a spheres-of-influence world.

Certain statements and actions from the Trump Administration have led to uncertainty about the Administration’s intentions regarding the future U.S. role in the world. Based on those statements and actions, some observers have speculated that the Trump Administration may want to change the U.S. role in one or more ways. A change in the overall U.S. role could have profound implications for U.S. foreign policy, national security, and international economic policy, for Congress as an institution, and for many federal policies and programs.

— Joe

CRS produces primer of domestic terrorism

The FBI defines domestic terrorism as acts of violence that violate the criminal laws of the United States or any state, committed by individuals or groups without any foreign direction, and appear to be intended to intimidate or coerce a civilian population, or influence the policy of a government by intimidation or coercion, and occur primarily within the territorial jurisdiction of the United States. Domestic Terrorism: An Overview (Aug. 21, 2017 R44921) is a detailed primer on the topic. — Joe

Archive of Copyright Office briefs and legal opinions now online

Under the Copyright Act, the Copyright Office is responsible for advising on certain questions of copyright law. This advice manifests itself in many forms. For instance, based on advice received from the Office, the Department of Justice files briefs in federal court on behalf of the federal government on issues of copyright law. In addition, the Copyright Office issues binding opinions on questions of copyright law to the Copyright Royalty Board. The Copyright Office has now published an archive of its briefs and legal opinions, which the Office intends to keep updated.

H/T Gary Price’s InfoDocket post. — Joe

Gerrymandering: CRS report on congressional redistricting law

From the introduction of Congressional Redistricting Law: Background and Recent Court Rulings, Mar. 23, 2017 R44798: “In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.” — Joe

Frequently asked DACA and DAPA program questions

From the Congressional Research Service:

From ImmigrationProf Blog: Resources on DACA

See also Text of Attorney General Sessions’ statement on rescinding DACA

— 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

DOJ’s 1974 memo on the legal aspects of impeachment

Here’s an example of what you may find at the Government Attic, a repository of FOIA-released government documents: DOJ Legal Memorandum titled Legal Aspects of Impeachment: An Overview which was written during the Watergate constitutional crisis. — Joe

Using Congressional Research Service Reports in LR&W instruction

Most readers are probably aware of legislative research reports produced by the Congressional Research Service. Two come readily to mind:

But there are plenty more where those came from. Here’s just a sample of CRS reports that can provide useful background reading on the federal legislative process for the legal research component of “how a bill becomes a law.”

Bills and Resolutions: Examples of How Each Kind Is Used (Dec. 2, 2010 98-706)

The Senate’s Calendar of Business (Apr. 21, 2017 98-429)

Calendars of the House of Representatives (Mar. 2, 2017 98-437)

House Floor Activity: The Daily Flow of Business (April 16, 2008 RS20233)

Introducing a Senate Bill or Resolution (Jan. 17, 2017 R44195)

Introducing a House Bill or Resolution (Jan. 12, 2017)

Sponsorship and Cosponsorship of House Bills (Jan 12, 2017 RS22477)

Types of Committee Hearings (June 28, 2017 98-317)

Hearings in the U.S. Senate: A Guide for Preparation and Procedure (Mar. 18, 2010 RL30548)

Hearings in the House of Representatives: A Guide for Preparation and Procedure (June 13, 2006 RL30539)

“Holds” in the Senate (Jan. 17, 2017 R43563)

Enrollment of Legislation: Relevant Congressional Procedures (May 18, 2017 RL34480)

Veto Override Procedure in the House and Senate (Feb. 2015 RS22654)

How Bills Amend Statutes (June 24, 2008 RS20617)

— Joe

Congressional censure and post-Charlottesville calls for Congress to censure President Trump

“Censure is not impeachment,” wrote USA Today’s Editorial Board. “Whether that’s appropriate will likely depend on the outcome of special counsel Robert Mueller’s investigation into ties between Russia and the Trump campaign. But censure would constitute a forceful way of rebuking the White House and condemning the vile views of a bigoted fringe, even as those people’s right to free speech and peaceful protest is protected under the First Amendment.” After Charlottesville, time to censure President Trump, USA Today, Aug. 16, 2017.

On Congressional censure, see Congressional Censure and “No Confidence” Votes Regarding Public Officials, (June 23, 2016). From the introduction:

The House and the Senate have, from time to time in the past, proposed and—on some occasions—adopted a resolution which has expressed the body’s disapproval, condemnation, censure, or lack of confidence regarding a particular official in the executive branch of the federal government.

Such actions have not been considered as part of the express impeachment authority of the House within the Constitution (nor the authority to try such impeachments in the Senate), nor have they generally been considered as either part of the inherent contempt authority of either house of Congress or the express constitutional authority of each house of Congress to discipline its own Members. Rather, such actions seem to be in the nature of a “sense of the House” or a “sense of the Senate” resolution, whereby a simple resolution is proposed and adopted by one house of Congress, without the concurrence of the other house of Congress, and without a requirement for a “presentment” to the President (as would be required of a “bill”). Such simple resolutions adopted by one house (or concurrent resolutions adopted by both houses) have come to be recognized by parliamentarians as a vehicle to express the opinion and sense of Congress on a nonlegislative matter; and “sense of” the House, Senate, or Congress resolutions concerning a wide range of subjects have been used frequently in the past by the House and Senate.

The adoption of a simple or concurrent resolution expressing the House’s or Senate’s “censure,” “condemnation,” or “no confidence” in a particular officer of the federal government does not have any immediate or binding legal import, but does express a particular moral judgment and may have both symbolic as well as political implications.

— 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