An Extremist Attorney General

I didn’t think that President Trump could find someone more conservative to be Attorney General than Jeff Sessions, but I was wrong. Acting Attorney General Matthew Whitaker’s beliefs are at the far-right fringes of the Republican party. Thankfully, there is a strong argument made by conservatives such George Conway, Alberto Gonzalez, and John Yoo that the appointment of Whitaker is unconstitutional.

Whitaker’s views on constitutional law are stunning. While running for the Senate in Iowa four years ago (he finished fourth), he was asked what Supreme Court cases were wrongly decided. “There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Also, while running for the Senate, Whitaker said that states did not have to follow federal law and could nullify it if they wished. Whitaker acknowledged that the idea of state nullification of federal law “has been turned down by the courts and our federal government has not recognized it." But Whitaker said that this wrong, “Now we need to remember that the states set up the federal government and not vice versa.” “But do I believe in nullification? I think our founding fathers believed in nullification. There's no doubt about that.”

In just a few sentences, Whitaker rejected foundational constitutional principles that have been followed since the earliest days of American history. Whitaker rejects Marbury v. Madison and the power of courts to review the constitutionality of statutes and executive actions.

He rejects “all” of the New Deal cases. These included decisions upholding Social Security, the federal minimum wage, and federal agencies such as the National Labor Relations Board. These are the cases that provided the basis for federal civil rights laws, such as the Civil Rights Act of 1964, which prohibits race discrimination by hotels and restaurants and forbids employment discrimination based on race, sex, or religion.

But Whitaker goes even further and says that states can nullify federal law because states created the federal government. The Supreme Court expressly rejected this argument in McCulloch v. Maryland in 1819, when Chief Justice John Marshall explained that it was the people, not the states, that created the national government and held that states cannot nullify federal actions.

State nullification is inconsistent with the text of the Constitution, which in Article VI makes clear that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. Whitaker embraces a position that has a truly vile pedigree. South Carolina Senator John Calhoun argued that states were sovereign and could interpose their sovereignty to negate federal action to limit slavery. In the 1950s and 1960s, segregationists revived this theory to justify not complying with federal desegregation orders. It was a terrible theory then and it is frightening to have an Attorney General who embraces it.

If this is not enough, Whitaker has taken the position that only Christians should be federal judges. While running for the Senate in Iowa, Whitaker was asked about his criteria for evaluating federal judges. He said, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.” The moderator asked, “Levitical or New Testament?”  “New Testament,” Whitaker replied. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”  The Constitution specifically prohibits a religious test for public office, but now we have an Acting Attorney General who believes in one.

How did we end up with a person with such extreme views as Whitaker? He had one key qualification: he publicly and sharply criticized the Mueller investigation, which he now oversees as Acting Attorney General. In an oped for CNN, Whitaker argued that the Mueller investigation had gone too far. He also said Sessions’ replacement as Attorney General could effectively end the special counsel investigation by “reduc[ing] [Mueller's] budget so low that his investigation grinds to almost a halt.”

There are calls for Whitaker to recuse himself from overseeing the Mueller investigation, but Whitaker has given no indication of doing so. There are bipartisan bills pending in Congress to protect Mueller, but it is unclear whether they will pass.

At the same time, many prominent individuals have argued that it is unconstitutional to have an Acting Attorney General who never has been approved by the Senate. Neal Katyal and George Conway argued this in an oped in the New York Times and staunch conservatives such as John Yoo and Alberto Gonzalez have echoed it. Traditionally, a vacancy in the position of Attorney General is filled by an official who has been confirmed by the Senate until the nomination and confirmation of the new Attorney General.

Jeff Sessions did many terrible things as Attorney General. He initiated and defended the policy of separating parents and children at the border. He mandated charging every crime to the maximum. He withheld federal law enforcement funds from cities that did not cooperate with federal immigration officials, which several federal courts declared unconstitutional. But he did the right thing and recused himself from the Mueller investigation and never interfered.

For that he drew President Trump’s ire and insults and it led to his firing. In Matthew Whitaker, President Trump found someone more extreme than Jeff Sessions. Whitaker is one the most frightening people to occupy the role of Attorney General in American history.

Senate Continues Blazing Ahead with Judicial Nominations Hearings

After holding two unprecedented hearings over the objections of the Democrats during the most recent Senate recess, the Senate Judiciary Committee will hold a hearing on Tuesday, November 13. The Senate Judiciary Committee will hear from five nominees: Paul Matey (3d Cir, N.J.), J.P. Boulee (N.D. Ga), James D. Cain (W.D. La.), Damon Leichty (N.D. Ind.), and J. Nicholas Ranjan (W.D. Pa.).

The Committee will also hold an Executive Business Meeting on November 15, where they will consider 15 judicial nominees who are waiting to be reported out of Committee.

The current Senate Judiciary Chairman, Senator Chuck Grassley, has repeatedly ignored home-state Senator consent and held hearings for nominees who are lacking at least one blue slip. This is just one of the five ways Senate leadership and the White House are bending the norms and violating the usual processes for vetting candidates. To learn more about the norms being broken in the partisan attempt to capture the courts, click here.

The Administration’s New Asylum Rules Raise Legal and Moral Questions

On November 9, 2018, President Donald Trump issued two significant policy changes to entry and asylum, one in the form of a presidential proclamation and the other in the form of a regulation. Together, these policies prohibit individuals and families who arrive at the southern border irregularly (i.e., somewhere other than a designated port of entry) from seeking and being granted asylum.

 Asylum is a statutory form of protection contained in the immigration statute known as the Immigration and Nationality Act (INA). Importantly, the asylum provision in the INA plainly states that any person physically present in the United States is eligible to apply for asylum regardless of her status or manner of entry. The administration’s new asylum rules are in violation of the plain language of the immigration statute.

 Congress wrote the statute in 1980 as part of the Refugee Act in order to bring the United States in compliance with its obligations under international treaties. To be granted asylum, an individual must satisfy the definition of a refugee, which is defined in the INA as a person who has suffered persecution or would face similar harm in the future because of race, religion, nationality, political opinion, or membership in a particular social group.

 Oftentimes, the persecutor is the government, but sometimes he may be a non-state actor the government is unable or unwilling to control, like a specific gang or domestic partner. Not everyone will qualify for asylum, but anyone who arrives in the United States has the right to apply for this protection.

 Beyond raising legal concerns, the administration’s new asylum rules raise moral questions, too. The United States is viewed as a beacon of hope to refugees around the world, but shutting the door on asylum seekers because of the way they entered the United States undermines this image and ignores the complicated set of factors that drive a person out of her homeland in the first place.

 As an immigration attorney who has worked with and represented asylum seekers for nearly 20 years and a law teacher who has taught asylum and refugee law for the last 13 years, I am disheartened by the administration’s new policies.  

Learn more in this FAQ about the Trump administration's new policy changes in this fact sheet from the Penn State Law Clinic's Center for Immigrant Rights.

Legal Responses to Regulatory Capture

Under President Donald Trump, federal agencies are showing ever-increasing signs of regulatory capture. The Environmental Protection Agency (EPA), under former Administrator Scott Pruitt and Acting Administrator Andrew Wheeler, has been a poster child for an agency captured by a well-connected regulated industry.  At EPA, it’s the fossil fuel industry – but industry and their lobbyists have infiltrated agencies across the federal government.  Courts applying administrative law are now the terrain upon which the battle to protect the public interest must be fought, and administrative law can give us the tools to win.

Administrative law is not designed to shield the regulatory process from all political and ideological considerations, but it does require process that conforms to basic rule-of-law requirements, and decisions with a sound evidentiary basis.  Regulators do not have carte blanche to promulgate rules that are entirely unsupported by relevant scientific, technical, and economic expertise, just because a powerful industry says so.

President Trump’s EPA is busily trying to rescind and replace the Clean Power Plan, freeze fuel economy and greenhouse gas emissions standards for automobiles, and limit the types of scientific studies that can be used in rulemaking – all projects at the top of the fossil fuel industry’s wish list.  For decades, the fossil fuel industry has propped up a Potemkin village of trade associations, think tanks, and other front groups that churn out biased, self-serving studies to lend a veneer of credibility to industry’s self-interest; long-time industry operatives from that apparatus now reside at EPA headquarters.  Industry has captured this regulator.

A recent article in the American Journal of Public Health described EPA’s many signs of regulatory capture.[1]  Pruitt’s political career was bankrolled by the oil & gas industry.  Wheeler was a lobbyist for the coal industry.  Most of EPA’s political staff is closely tied to the fossil fuel industry, or to elected officials with close industry ties.  EPA restructured its scientific advisory boards to marginalize independent researchers and allow industry lobbyists greater influence.  The article found “a decisive shift to the overt and systematic influence of regulated industries” at EPA.

EPA is not alone.  Secretary of Education Betsy DeVos has surrounded herself with former employees of for-profit colleges, so it should come as no surprise that the Department of Education proposed rolling back rules that penalized for-profit colleges whose graduates’ meager average earnings make it impossible for them to repay student loans.  Office of Management and Budget Director Mick Mulvaney, who famously stated that as a congressman he wouldn’t meet with lobbyists if they didn’t give him money, is also running the Consumer Financial Protection Bureau, where he has sided with the payday lending industry against a rule designed to avoid trapping low-income lenders in endless spirals of debt.  There is no shortage of Trump agency rulemakings that can and should be challenged on grounds of industry capture.

It begins with presenting evidence and argument that the agency has been captured.  Courts have, in some cases, applied a stricter degree of scrutiny to administrative decisions when they see the danger signals of industry capture.  In Greater Boston Television Corp. v. FCC, the D.C. Circuit Court of Appeals wrote that judicial intervention in regulatory decisions was appropriate when “the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a ‘hard look’ at the salient problems and has not genuinely engaged in reasoned decision making.”  The “danger signals” that appellate courts have found to trigger “hard look” review are all signs of regulatory capture, such as improper contacts between a company executive and the regulator,[2] a demonstration of undue bias by the regulator towards private interests,[3] or an abrupt shift in policy.[4]

Additionally, courts have found that it is appropriate to more closely scrutinize regulatory decisions that constitute an abrupt change in course.  If an agency makes such a regulatory U-turn, it must “provide a more detailed justification than would suffice for a new policy […] when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy. […]  It would be arbitrary and capricious to ignore such matters.”[5]  “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past.”[6]

“Hard look” review is increasingly relevant when people like Scott Pruitt and Andrew Wheeler run an agency like EPA.  Danger signals flash everywhere:  the former administrator had received campaign donations from regulated industries and their outside spending groups; staff previously worked for or represented regulated industries; top officials held frequent meetings with regulated industries; and EPA took official actions in direct response to requests from regulated industries.  Make your case; point out these danger signals in the administrative record and ask courts to take a “hard look” at the agency and its decision.

Of course, don’t forget the basics.  A regulator “must examine the relevant data and articulate a satisfactory explanation for its action.”[7]  Decisions have to be based on “substantial evidence,” not supposition or spin.  A decision is thrown out if it is “arbitrary or capricious.”  Those interested in a rulemaking “have a right to a fair and open proceeding; that right includes access to an impartial decisionmaker.” [8]  A regulator should be disqualified from a rulemaking “when there has been a clear and convincing showing that the [regulator] has an unalterably closed mind on matters critical to the disposition of the proceeding.”[9] Close review of the evidentiary record, and of the credentials and bias of the experts, will often make your challenge successful.  Where FOIA or other requests can expose agency bias, communications with interested parties, and procedural mischief, these discoveries can amplify your argument.

Another legal line of attack that practitioners should explore is non-delegation doctrine.  In Association of American Railroads v. USDOT, the court held that agencies may not delegate rulemaking authority to private interests.  The delegation at issue in that case was overt, but the non-delegation doctrine should equally apply to covert delegations of rulemaking authority.  There is no substantive difference between an agency telling a company or industry to write a rule for it and an agency telling a company or industry that it will write whatever rule the company or industry wants.

Administrative law is facing a test during the Trump administration.  Usually, courts give significant deference to regulators who are presumed to have scientific and technical expertise that Congress and the courts lack.  But challengers can attack that deference when the agency decision is the product not of expertise, but of industry-generated talking points laundered through a captured administrative process.

As a United States Senator, I am confronted on an almost daily basis by the overpowering influence of special interests in Congress and in the executive agencies we oversee.  When industry co-opts its regulator, it falls to the courts, and the lawyers who challenge agency decisions, to protect the public interest and the rule of law.  Courts may be our theoretically apolitical branch of government, but that does not mean they should be blind to the special interest influences distorting government actions that come before them.  Traditional notions of judicial deference to agency decision-making may have to be reversed where there is evidence of regulatory capture, in order to protect rule of law from private influence.  We unfortunately live in a time of widespread regulatory capture.  We should not pretend otherwise.  We should fight hard to protect fact-based, expert, dispassionate government decision-making.

Sheldon Whitehouse is the United States Senator from Rhode Island.  A more detailed look at his views on regulatory capture and the administrative process can be found in his comment letter on EPA’s proposed rule to replace the Clean Power Plan, available here.  

 

[1] Lindsey Dillon, et al., “The Environmental Protection Agency in the Early Trump Administration: Prelude to Regulatory Capture,” American Journal of Public Health (April 2018), https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304360

[2] Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970)

[3] National Resources Defense Council v. SEC, 606 F.2d 1031 (D.C. Cir. 1979)

[4] United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983)

[5] FCC v. Fox Television Stations, 566 U.S. 502, 515 – 16 (2009)

[6] Id. at 537 (Kennedy, J., concurring).

[7] Motor Vehicle Manufacturers Assn. v. State Farm Mutual Automobile Ins. Co., 463 US 29, 43 (1983) quoting Burlington Truck Lines, Inc. v. United States, 371 U. S. 156168 (1962).

[8] Association of National Advertisers v. FTC, 627 F.2d 1151, 1174 (D.C. Cir. 1979); see also Lead Industries Association v. EPA, 647 F.2d 1130 (D.C. Cir. 1980)

[9] Ass’n of Nat’l Advertisers, Inc., 627 F.2d at 1170.

Wednesday Afternoon Massacre: Trump's Actions Threaten the Rule of Law

Yesterday, President Trump accelerated his long-running campaign to undermine the investigation by Special Counsel Robert Mueller by forcing the departure of Attorney General Jeff Sessions and naming as Acting Attorney General Matthew Whitaker, former Department of Justice chief of staff. With this action, the President installed as our nation’s top law enforcement official an individual who has repeatedly denigrated the Mueller investigationprejudged substantive matters relevant to the investigation – and whom the White House chief of staff reportedly described as “the West Wing’s ‘eyes and ears’ in a department the president has long considered at war with him.”

Sessions' "requested resignation" is starkly analogous to the “Saturday Night Massacre” where then-Attorney General Elliot Richardson and others resigned after refusing to follow President Richard Nixon's request that they fire the Special Prosecutor who was investigating the Watergate scandal.

These circumstances pose direct and serious threats to the rule of law. It presents a fundamental conflict of interest for President Trump to hand-pick the supervisor of an investigation that already has identified the President as a subject – and Whitaker's specific history regarding the Mueller inquiry only heightens these conflict concerns. As detailed in today’s New York Times op-ed by Obama White House ethics czar Norm Eisen and Democracy21 President Fred Wertheimer, Whitaker should be recused from any matters involving the Mueller inquiry.

The President’s Wednesday afternoon massacre raises a host of additional legal and ethical issues, including whether the appointment of Whitaker comports with the DOJ succession statute and regulations and the Vacancies Reform Act. Georgetown Professor Marty Lederman dissects those issues in a Just Security blog post today, Neil Katyal and George Conway weighed in in The New York Times, and former federal prosecutor Renato Mariotti and former U.S. Attorney Preet Bharara each provided analysis on podcasts today.

Regardless of any recusal actions, Congress has authority to enact additional protections for the Special Counsel and should conduct vigilant oversight to ensure he continues to be able to follow the facts where they lead.