Chris Mooney / The Washington Post & Donald J. Trump / The White House & William Boardman / Reader Supported News – 2017-02-18 00:59:43
Green Groups File Sweeping Lawsuit AccusingTrump of Usurping Congress’s Powers on Regulations
Chris Mooney / The Washington Post
(February 14, 2017) — Three advocacy groups filed a sweeping federal lawsuit Wednesday, challenging President Trump’s executive order requiring two federal regulations to be “identified for elimination” for every new one added — arguing that the order fundamentally takes over Congress’s powers to enact laws to protect public health, safety, and the environment. [See the Executive Order below — EAW]
“The Executive Order exceeds the President’s authority under the Constitution, usurps Congress’s Article I legislative authority, and violates the President’s obligation to ‘take Care that the Laws be faithfully executed,'” says the lawsuit filed by Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America.
The executive order in question did not garner nearly as much attention as Trump’s executive order on immigration. Yet although in a very different sphere from immigration, the question the lawsuit raises is similar to that now playing out in court before the 9th Circuit — does a Trump executive order violate a very basic element of the Constitution?
The executive order requires agencies to compare major regulations based on their costs — it does not take into account their benefits — and for every new one issued across the government, requires that two of roughly equal cost be undone. But the advocacy groups contend that this is arbitrary — why go backward on, say, two vehicle safety standards so that you can institute a new and different one?
They add that major laws enacted by Congress and implemented by agencies, such as the Clean Air Act or Endangered Species Act, do not contain any provision instructing that their application should be limited based on cost, or on what other parts of the government are doing.
Within a matter of hours, the case had drawn the White House’s attention. Sean Spicer, Trump’s press secretary, dismissed the lawsuit at a news briefing Wednesday, arguing that the case itself “is wildly inaccurate. It makes a ton of assumptions that call for speculation on what may or may not happen in the future, it’s just subjective at best and doesn’t have any basis in fact.”
Among legal observers, reactions were quite varied.
“The lawsuit charges that the executive order violates the Constitution and federal statutes by replacing existing legal standards with the ‘1 in, 2 out’ standard made up by President Trump,” said Lisa Heinzerling, a professor of environmental law and regulation at Georgetown University Law School. “The president cannot instruct agencies to ignore the legal standards Congress has imposed on them.”
However, far more skepticism came from Jeffrey Holmstead, a former Environmental Protection Agency assistant administrator under George W. Bush who now works at Bracewell LLP on environment and energy law.
“This is a messaging lawsuit,” Holmstead said in a statement. “They have no chance of winning.”
“There is no final agency action, and they don’t have standing because they can’t point to any immediate harm,” he added. “They may well point to the EO in challenging a future Trump rule, but they can’t challenge the EO itself.”
Those will be major difficulties facing the lawsuit, agreed Tom McGarity, a scholar who studies regulation at the University of Texas at Austin law school. But McGarity also said that the groups get at deep issues involving whether the president is indeed required to “take Care that the Laws be faithfully executed,” as the Constitution states. And he said that while this early and ambitious lawsuit may founder, it sets the stage for what is likely to be a string of intense battles over how Trump has moved, with one order, to bring much of the regulatory state grinding to a halt.
“The environmental groups are going at this with all guns blazing,” said McGarity. “It’s a broad argument, it’s by no means a frivolous lawsuit. . . . I think it’s going to be a hard case to win. It is a kind of a shot across the bow to the administration, that you can write these executive orders, but you’re going to run into resistance when they cause agencies to conflict with what Congress has told them to do.”
The lawsuit was filed before the US District Court for the District of Columbia, and names not only Trump but also Mark Sandy, the acting director of the Office of Management and Budget, which will implement the executive order and has already issued guidance on it. In addition, it names the heads of numerous federal agencies.
In their complaint, the advocacy groups run through multiple major federal laws and some of the regulations they have so far engendered, in areas ranging from occupational health, to vehicle safety, to energy efficiency mandates, to endangered species protections. In each case, the suit poses a similar question:
Did Congress really intend that, in order to protect a new endangered species, two others should cease to be protected — or that several other regulations in some different area (such as worker safety, perhaps) should vanish?
“To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law,” the suit contends.
McGarity said that the case against Trump himself may be the hardest to win — the constitutional clause requiring the president to “faithfully execut[e]” the laws has rarely been tested, he said — but when it comes to the Office of Management and Budget, which implements the executive order, that could be another matter.
If that office, through the order, requires federal agencies to behave in arbitrary ways that don’t live up to what the laws require of them, then he thinks green groups will have a foothold. The same goes for agencies themselves.
In other words, any way you look at it, the suit could mark the beginning of a major battle over Trump’s attempt to halt regulations that he claims are overly expensive and have harmed businesses.
“I have persuaded my colleague to do an article about this one, we’re just going to follow it, because it’s going to raise a ruckus,” McGarity said.
Presidential Executive Order on Reducing
Regulation and Controlling Regulatory Costs
The White House Office of the Press Secretary
WASHINGTON, DC (January 30, 2017) — By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Budget and Accounting Act of 1921, as amended (31 U.S.C. 1101 et seq.), section 1105 of title 31, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Purpose. It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources. In addition to the management of the direct expenditure of taxpayer dollars through the budgeting process, it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.
Toward that end, it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.
Sec. 2. Regulatory Cap for Fiscal Year 2017.
(a) Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.
(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).
(c) In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.
(d) The Director shall provide the heads of agencies with guidance on the implementation of this section. Such guidance shall address, among other things, processes for standardizing the measurement and estimation of regulatory costs; standards for determining what qualifies as new and offsetting regulations; standards for determining the costs of existing regulations that are considered for elimination; processes for accounting for costs in different fiscal years; methods to oversee the issuance of rules with costs offset by savings at different times or different agencies; and emergencies and other circumstances that might justify individual waivers of the requirements of this section. The Director shall consider phasing in and updating these requirements.
Sec. 3. Annual Regulatory Cost Submissions to the Office of Management and Budget. (a) Beginning with the Regulatory Plans (required under Executive Order 12866 of September 30, 1993, as amended, or any successor order) for fiscal year 2018, and for each fiscal year thereafter, the head of each agency shall identify, for each regulation that increases incremental cost, the offsetting regulations described in section 2(c) of this order, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation.
(b) Each regulation approved by the Director during the Presidential budget process shall be included in the Unified Regulatory Agenda required under Executive Order 12866, as amended, or any successor order.
(c) Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent version or update of the published Unified Regulatory Agenda as required under Executive Order 12866, as amended, or any successor order, unless the issuance of such regulation was approved in advance in writing by the Director.
(d) During the Presidential budget process, the Director shall identify to agencies a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year.
No regulations exceeding the agency’s total incremental cost allowance will be permitted in that fiscal year, unless required by law or approved in writing by the Director. The total incremental cost allowance may allow an increase or require a reduction in total regulatory cost.
(e) The Director shall provide the heads of agencies with guidance on the implementation of the requirements in this section.
Sec. 4. Definition. For purposes of this order the term “regulation” or “rule” means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, but does not include:
(a) regulations issued with respect to a military, national security, or foreign affairs function of the United States;
(b) regulations related to agency organization, management, or personnel; or
(c) any other category of regulations exempted by the Director.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE,
January 30, 2017
Constitutional Crisis Deepens as Trump Fights Checks and Balances
William Boardman / Reader Supported News
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Tweet from Donald J. Trump, February 9, 2017
WASHINGTON, DC (February 11, 2017) — Trump’s screaming tweet, complete with all caps in the original, captures the essence of this president’s bald move to take total power over the United States. When he says “the security of our nation is at stake,” he refers demagogically to the imaginary threat of terrorists from seven countries.
He is right to say “the security of our nation is at stake,” but not at all in the way he means — the security of our nation is profoundly at stake in this case because, if he wins, then presidential orders will become dictatorial decrees beyond the reach of the courts. Our constitutional crisis continues.
At issue is Executive Order 13769, issued January 27, 2017, establishing the so-called Muslim ban on immigrants from seven countries (Iran, Iraq, Yemen, Syria, Somalia, Sudan, and Libya). The order was prepared with limited vetting and implemented with no advance planning, creating immediate, global chaos that led to numerous court challenges and partial stays of the order.
The case brought January 30 by the states of Washington and Minnesota together persuaded a Washington State judge (appointed by President Bush) to issue a nationwide temporary restraining order (TRO), enjoining the US government from enforcing key provisions of the Executive Order (which the government apparently took its time to obey).
The government’s motion for an emergency stay of the TRO was heard February 7 by a three-judge federal district Appeals Court (one step below the US Supreme Court). On February 9, the Appeals Court unanimously affirmed the lower court’s ruling and left the TRO in place, unmodified, until the lower court holds a duly-scheduled hearing of the government’s appeal of the TRO before deciding whether to make the TRO permanent.
Trump’s Executive Order has created a watershed crisis in US constitutional government. Trump fired an acting attorney general for questioning his order’s constitutionality and legality. Several lower federal courts have found the order, in the words of the Appeals Court, “unconstitutional and violative of federal law.”
The issue is likely to reach the Supreme Court before long. If the Supreme Court rules for the president, then he will be able to rule by decree. If the Supreme Court upholds the lower courts, that will check the president’s power to rule by decree, but only until the next challenge to the US Constitution’s traditional balance of powers.
Ninth Circuit Appeals Court
Rejects Attack on Constitution
What follows is a brief summary of the Appeals Court’s 29-page order, including the constitutional issues that court identified. The language of the Appeals Court order is as restrained and dignified as the president’s tweets are hysterical and outrageous.
The court begins (p. 3) by stating the basis for deciding the issue:
To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay.
In sketching the background for the Executive Order, the court notes (p. 3) that the only specific attack or threat cited to justify the danger to national security is 9/11. The court described elements of the Executive Order and their impact as they were implemented.
In a February 10 tweet, President Trump asserted:
LAWFARE: “Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.” A disgraceful decision!
Since the court cites the Immigration and Nationality Act, codified at 8 USC. (p. 4), it’s not clear what statute Trump had in mind.
The court also wrote (p. 6) that in issuing its initial restraining order:
The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful.
The US government claimed that the states had no standing to sue, no right to sue, because the states had not suffered sufficient injury from the Executive Order. The government did not dispute that the state universities “are branches of the States under state law” (p.8).
After reviewing the impact of the Executive Order on members of the state universities, the court held (p.12):
We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order.
The necessary connection can be drawn in at most two logical steps:
(1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota;
(2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.
And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.
According to government lawyers, the federal courts have no legitimate authority to review any presidential orders “to suspend the admission of any class of aliens: (p. 13). The government argues that such orders are even more unreviewable when the president is motivated by national security claims, even if the orders violate constitutional rights and protections. The government claims that court review of unconstitutional orders violates the principle of separation of powers in government.
The court rejects these arguments (p. 14):
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy . . . . Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches . . . . ” We are called upon to perform that duty in this case.
The court notes (p.15) that the government is so desperate to find support for its claims that it misquotes from a case (Kleindienst v. Mandel) to reach a false conclusion. Even in national security cases, the courts have a legitimate role, contrary to the government argument.
The court points out that, while the Supreme Court counsels deference to national security decisions of the White House or Congress, the Supreme Court also made clear that (pp. 17-18):
. . . the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war . . . . it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.
Addressing the government’s motion to stay the lower court order, the Appeals Court points out that a stay is not a matter of right, but a matter of court discretion based on the particular circumstances of the case.
The government, by requesting the stay, bears the burden of showing that those circumstances support the request:
Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” [citation omitted]
The court concludes that the government fails to satisfy any of the four criteria. The court cites the Constitution’s Fifth Amendment requirement that “No person . . . be deprived of life, liberty, or property without due process of law . . .” and describes the government position in quietly scathing terms (pp. 19-20):
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process.
Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause. [emphasis added]
To make this argument, the government lawyers must ignore the plain language of the Constitution referring to “No person” and hope that no one notices that the individuals affected by the Executive Order are, in fact, living, breathing persons. People noticed, and people noticed that this attitude is authoritarian and in antithesis to American democratic standards.
The government tries to mitigate the Executive Order by referring to an “Authoritative Guidance” issued by White House Counsel Donald F. McGahn addressing and seeking to remedy certain portions of the order relating to lawful permanent residents.
The court rejects this government argument with withering dry scorn (pp. 21-22):
The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.
In analyzing this and other poorly thought out, incomplete, and incompetent aspects of the government’s case, the court points out (p. 24) that “it is not our role to try, in effect, to rewrite the Executive Order.” What the court says, with somewhat sly due deference, is that it’s up to the White House to do its job correctly.
The court turns to the states’ argument that the Executive Order violates both the Constitution’s First Amendment’s command that “Congress shall make no law respecting an establishment of religion,” as well as the Equal Protection Clause of the Constitution.
White citing Supreme Court holdings supporting the states’ argument, the Appeals Court chooses not to address it in the context of the government’s emergency motion. The court reserves the right to address the issues when the appeal of the TRO is heard.
Although the court does not address it directly, the underlying absurdity of the Executive Order is that it is based on fear-mongering over imaginary threats. If the “terrorist threats” endlessly uttered by the Chicken Littles of government and media had any basis in reality, then suspending the Executive Order might actually be dangerous and might even lead to “irreparable injury.”
The court rejects that government argument, too (p.26):
The Government has not shown that a stay is necessary to avoid irreparable injury . . . . Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.
The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. [emphasis added]
In contrast, the court found that the states had provided ample evidence that the Executive Order had already caused irreparable damage to some people and that, if reinstated, it would cause irreparable damage to many more.
Assessing the general public interest, the court saw favorable arguments on both sides. The public has a “powerful interest in national security,” but the public also has an interest in “free flow of travel, in avoiding separation of families, and in freedom from discrimination.”
At this point, the court denies the government’s motion for an emergency stay, in effect because there is no perceptible emergency. Or rather there is no emergency as the government defines it. Taken as a whole, the court’s order illustrates a serious constitutional emergency perpetrated by the president against his own government and people.
While the court doesn’t list other public interests, the public also surely has a substantial interest in a government that follows the constitutional due process of law, that acts in good faith, that supports its arguments with facts based in reality, and that does not claim the right to act dictatorially with no checks and balances.
White House Acts as If It Is
Not Only ABOVE the Law, It IS the Law
Late on February 10, Trump administration sources said there would be no appeal of this decision to the Supreme Court.
That leaves the future district court decision as a possible vehicle for a Supreme Court ruling. But late on February 10, the president hinted at just issuing a brand new Executive Order (adding “I like to surprise you.”).
This might be good for the White House, avoiding a possible Supreme Court decision requiring them to act within the constitutional framework of the law. That might also be better than a Supreme Court decision that reinforced the president’s power to rule by decree.
We don’t know how far the Supreme Court will go either for ideology or to protect judicial authority. We can be pretty sure that our constitutional crisis will not be over any time soon, and may not turn out well for the Constitution.
William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.
Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.