On Wisconsin: Suing In State Court To Overturn Republicans’ Lame-Duck Sore-Loser Legislation

On January 10 of this new year, three organizations and three individual plaintiffs in Wisconsin sued the state’s Elections Commission’s individual members and interim administrator, and the newly installed Democratic governor, Tony Evers (apparently as a necessary party). The target of the lawsuit is legislation passed - and 82 state-office appointments confirmed - by the Republican-majority state legislature, largely on party lines, in a lame-duck session in December, shortly after voters elected Democrats as governor, attorney general, and treasurer.

The organizational plaintiffs are the League of Women Voters of Wisconsin (LWVW), Disability Rights Wisconsin (DRW), and Black Leaders Organizing for Communities (BLOC). The individual plaintiffs are an employee of a woman-owned business and two other taxpayers who spent the largest parts of their careers as state-government lawyers, for, respectively, the Wisconsin Department of Natural Resources and the Wisconsin Attorney General.

The LWVW summarizes the lawsuit: “The plaintiffs allege that the Legislature unconstitutionally convened an ‘extraordinary session’ during which it passed three bills that expand the Legislature’s powers at the expense of the executive branch of government, thereby causing the plaintiffs irreparable harm.” The plaintiffs contend that the legislation at issue, inter alia, reduces the powers of the newly elected governor and attorney general, hamstrings state agencies, reduces opportunities for early voting, and reinforces voter ID requirements.

The complaint is here. The memorandum in support of the plaintiffs’ request for a temporary injunction is here.

(Note: On January 17, in a separate pending federal lawsuit, One Wisconsin Institute, et al., v. Thomsen, et al., 15 Civ 342, District Judge James D. Peterson entered an order enjoining enforcement of the new legislation’s provisions concerning “...(1) limits on the time for in-person absentee voting; (2) restrictions on the use of student identification cards for voting; and (3) a time limit on the validity of temporary identification cards issued under the ID Petition Process.” Judge Peterson found these new legislative provisions “...clearly inconsistent with the injunctions that the court has issued…” in 2016 concerning similar voter-unfriendly provisions passed by the Republican-controlled Wisconsin legislature. The interplay, if any, between the ongoing federal suit and the new state-court suit remains to be determined.)

Per the complaint (at 3-4), the Wisconsin suit is primarily grounded in these interrelated facts and legal contentions:

Shortly after a statewide election in which Wisconsin voters elected new candidates to replace incumbent-candidates for the statewide offices of Governor, Attorney General, and Treasurer, the Legislature, acting at the direction of the Assembly Committee on Assembly Organization and the Senate Committee on Senate Organization (“Organizing Committees”), convened the December 2018 Extraordinary Session to consider proposals limiting the powers of the Governor- and Attorney General-elect.

The Legislature lacked legal authority to convene the December 2018 Extraordinary Session. Neither the Wisconsin Constitution nor any statute authorizes the Legislature, let alone a small subset of each chamber acting at the direction of its respective Organizing Committee, to convene itself in an “extraordinary session.” Both Organizing Committees purported to act pursuant to Joint Rule 81(2)(a). But the Legislature’s Joint Rules, adopted by a joint resolution of the Legislature, do not have the force of law. [Case-citation omitted.]

...the Constitution authorizes the Legislature “to meet” in only two circumstances: “at such time as shall be provided by law” and when “convened by the governor in a special session.” Art. IV, § 11. Because the December 2018 Extraordinary Session does not fall within either category, the Legislature exceeded its constitutional authority by convening the session. Thus, it follows that all legislative business conducted during the December 2018 Extraordinary Session is ultra vires and, therefore, unenforceable.

In short, this is a threshold-illegality argument: no matter the content of the lame-duck litigation, it is void ab initio by virtue of the process that produced it.

The lawsuit seeks two forms of relief from these actions: (1) a declaratory judgment that the statutory amendments and confirmations are “without legal effect” and (2) an injunction to bar application, implementation, or enforcement of the lame-duck legislation and confirmations of nominees.

The plaintiffs’ legislative-process argument seems to be supported by provisions of Wisconsin’s constitution that govern meetings of the legislature.

Legislative meeting authority: Meeting of legislature. SECTION 11. The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened. [Legislative history omitted. Emphasis added.]

Gubernatorial meeting authority: Powers and duties. SECTION 4. The governor ...shall have power to convene the legislature on extraordinary occasions... [Legislative history omitted. Emphasis added.]

So, if plaintiffs have the law right and establish that the legislative session was not convened pursuant to law or convened by the governor as a special/extraordinary session, then the legislative action would appear to be ultra vires.

(This invites an intriguing question: why didn’t the outgoing Republican governor Scott Walker convene an extraordinary session to preemptively moot this kind of lawsuit?)

In some respects, this is a high-risk/high-reward litigation strategy:

  • First, whether plaintiffs ultimately prevail or lose in the state supreme court on the process issue, they could settle this legal question for all other legislation enacted in lame-duck sessions by a Wisconsin legislature.
  • Second, if plaintiffs lose, they will be stuck with the content of the laws unless they can find other legal bases on which to challenge their substantive provisions. If they lose on the threshold issue but are permitted to amend their complaint, they will have to flesh out further the harms of the legislation in terms of other legal defects. They already do that to an extent in the complaint by setting out injuries each plaintiff will suffer from the legislation, but this seems a harder, more fact-intensive path to success.
  • Third, if plaintiffs lose on the process issue, statewide elected officers with few or no constitutionally defined specific powers thus could become - upon assuming office - puppets of hostile lame-duck legislatures.

As to the last point, this is a potential outcome of the Wisconsin litigation: for example, the powers-and-duties provision of the Wisconsin constitution for the treasurer and attorney general appears to assign to the legislature all authority to delineate this officer’s duties.

Treasurer and attorney general; duties, compensation. SECTION 3. The powers, duties and compensation of the treasurer and attorney general shall be prescribed by law.

[Amendment history omitted. Emphasis added.)

For further discussion, two features of the lawsuit are significantly noteworthy: (1) it was filed in state court (in Dane County, where Madison, the state capitol, is located), and (2) the suit is entirely and only premised on state-constitutional grounds. Plaintiffs eschewed filing in federal court or including any claim sounding in federal constitutional or statutory law, such as § 1983 of the U.S. Civil Rights of 1871 (42 U.S.C. § 1983) or the Americans With Disabilities Act, which might offer a statutory basis for claims by the DRW on behalf of its stakeholders, who claim harm, inter alia, from lame-duck legislative changes affecting Medicaid in Wisconsin.

The Wisconsin plaintiffs’ choice of forum and legal premises echoes the decision by voting-rights advocates in Pennsylvania in 2017 to litigate in state court - and only on state-law grounds - Republican-led legislative gerrymandering of Pennsylvania's congressional districts. The Pennsylvania plaintiffs’ decision to litigate in state court on state law was empirically defensible. Even though lower federal courts have rejected partisan gerrymandering, the U.S. Supreme Court has never invalidated a legislative districting scheme solely on the partisan advantage or disadvantage ensuing from the districting plan.

The Pennsylvania case played out well for the plaintiffs. Eventually, the case reached the Pennsylvania supreme court, which ruled for the plaintiffs. And, for want of agreement between the governor and the state legislature on a replacement districting map, the state supreme court re-drew the state’s congressional boundaries, aligning them more with Democratic preferences. The U.S. Supreme Court declined to take the case.

The state-court path might work out just as well for the Wisconsin plaintiffs. Optimism about state-based civil-rights litigation ought to be tempered, however, by matters relevant wherever civil-rights/civil-liberties plaintiffs consider whether to pursue state court litigation because they’re wary of winding up in a rightward-tilting U.S. Supreme Court.

First, in a given state, are there state-constitutional and -statutory provisions that civil-rights plaintiffs can deploy in litigation grounded only in state law? This kind of litigation is going to be very state-specific. State constitutions and statutes vary substantially, and the facts grounding claim(s) based in state-law will be state-specific.

Second, does the state supreme court lean in any particular partisan direction, and, if it does lean, which way is it moving while the litigation progresses? Realistically, the composite political bias of elected state supreme courts is likely to be an important tactical consideration for civil-rights plaintiffs who want to avoid a U.S. Supreme Court that has become less receptive during the Trump administration to civil-rights claims.

The Pennsylvania gerrymandering plaintiffs eventually arrived in a state supreme court with a 5-2 Democratic majority. If not actually partisan in judicial decision-making, it’s not unreasonable to assume that the Pennsylvania court was more favorably disposed to Democratically aligned civil-rights plaintiffs than might be a Republican-dominated court. In contrast, in Wisconsin, even though the Wisconsin supreme court’s justices are elected on “non-partisan” ballots, the court apparently has a 4-3 conservative majority.

(“Non-partisan judicial election” seems to be an acute misnomer in Wisconsin: In the 2018 election for one Wisconsin supreme court justice, “Both candidates and their supporters turned the race, which is technically nonpartisan, into a political referendum. [The Democrats’ preferred candidate] ran early ads that accused President Trump of ‘attack[ing] our civil rights and our values,’ while [the Republicans’ preferred candidate] portrayed himself as a ‘rule of law’ conservative endorsed by the National Rifle Association.” And, in that judicial election, more than $2.5 million was spent on television ads in the race by election day.)

Perhaps plaintiffs are betting that the state supreme court will be more receptive to their claims when their case actually reaches it. One Wisconsin supreme court seat is at play in an April 2019 election; one of the candidates is endorsed by Republicans and was formerly chief legal counsel to Governor Scott Walker, the other is endorsed by Democrats. In the last court election in April 2018, a Democratic-aligned candidate prevailed by a 56-44 majority.

The best case for the Wisconsin plaintiffs after the April 2019 election thus would seem to be a politically middle-ish state supreme court. The court, however, might be more actively hostile to the plaintiffs’ claims, politically speaking, if the Republican-supported candidate prevails. Even if the candidate aligned with Democratic constituencies wins, the court will still be more conservative than not.

Third, are progressive voters in a given state vigorously engaged with the state’s judicial-selection and legislative-election processes? Whether a state-court judiciary is elected or appointed, this kind of state-based civil rights litigation can only succeed where the courts are receptive to state-law civil rights claims. Long before any specific civil-rights complaint is filed in state court on state-law grounds, civil-rights stakeholders must engage actively in state judicial selection. Regardless, sore-loser lame-duck legislation might best be prevented by electing legislative majorities that won’t enact it.

Over the recent history of the U.S., litigation in federal courts has been an effective tool for expanding and insuring civil rights. Opposing that trend, the anti-regulatory and theocratically inclined blocs of the Republican coalition mobilized effectively in the last 30-plus years to gain the upper hand in the federal courts and - perhaps more importantly - many state legislatures, pulling rightward state and federal legislative and judicial decision-making.

Progressives have only recently taken on this same task with notable vigor. Notwithstanding recent victories (at the state level and Congressional level in 2017 and 2018), it’s going to be a long, slow climb to break the conservative grip on federal and state lawmaking processes.

The state-court litigation in Wisconsin is an exemplar of one element of a comprehensive progressive legal and political strategy. And the Wisconsin plaintiffs might prevail.

While promising, however, state-court litigation won’t succeed everywhere. A progressive legal agenda grounded in state-level policy-making might benefit more substantially - and more durably - from robust public involvement with state legislative elections and judicial selection.

The Shutdown and a Conscientious Legislator's Guide to Checks and Balances

Whatever one’s views on immigration policy or border security, the refusal of Republican legislators to join Democrats in re-opening the government before negotiating with President Trump is intensifying a genuine constitutional crisis. They are not only enabling the President’s breach of his oath to take care the laws be faithfully executed. They are surrendering Congress’s preeminent role in controlling the constitutional appropriations process.

Over forty years ago, Paul Brest, a prominent constitutional scholar who went on to become dean of Stanford Law School, wrote a short, but powerful law review article entitled, “The Conscientious Legislator's Guide to Constitutional Interpretation.” Brest made two key points. One is that Members of Congress should regard themselves as duty-bound to make an independent evaluation of the constitutionality of any proposed legislation on which they are voting. The second is that, in making that evaluation, a conscientious legislator should not simply predict how a court would respond. Courts often allow statutes to stand based on deference to legislative judgment or difficulties in determining legislative motive. For example, cutting back on government programs might be constitutional if intended as good-faith economic measures, but not if the cutbacks are designed specifically to hurt minority voters. Courts are reluctant, however, to second-guess legislative motive for fear of intruding on Congress’s legitimate legislative powers. But conscientious legislators need not defer to themselves, so to speak. Members know perfectly well, in most cases, what the real purpose of a bill is: whether it is really aimed at harming some minority or constitutionally protected interest, or if its operation is so far from achieving its supposed objective that it should not be regarded as sufficiently rational to pass constitutional muster.

Brest’s insight is not limited to a Member’s evaluation of legislation. It is no less important that Members be constitutionally vigilant before allowing their body or its leadership to either usurp the powers of other branches of government or to abdicate its own. It was on this basis that I argued in 2016 that the Senate’s refusal to take up the nomination of Judge Merrick Garland to succeed Justice Antonin Scalia was unconstitutional. The Senate’s stonewalling presumed a role for that body in the constitutional appointments process that went far beyond anything the Framers intended. Senate intransigence prevented President Obama, who had been elected to a second term of four years, not three, from performing his own assigned function with regard to a Supreme Court vacancy. I wrote: “Should presidents or legislators work to undermine each other’s constitutionally assigned functions . . ., it is hard to see how they are not violating their respective oaths.” Oath breaking is a constitutional violation, even though no federal court would regard itself as empowered to order the Senate to hold confirmation hearings, much less to vote on a nomination.

There is likewise no federal court available in 2019 to order Congress to reopen the government and end the longest shutdown in U.S. history. But Congress’s refusal to do so is just as dangerous to the constitutional framework, as is President Trump’s strong-arm strategy. The willingness of Republican Senators to abet that strategy is an abject abdication of the legislative power.

Presidents are constitutionally obligated to “take care that the laws be faithfully executed.” Courts have not given “faithful execution” any clear or precise definition. There is general agreement, however, that the clause was intended to prevent the executive from suspending laws. The idea is borrowed directly from the English Bill of Rights. And there is no definition of “faithful” that would countenance suspending the execution of the law solely to force Congress’s hand in appropriating funds to support a presidential campaign promise. Every part of the government that is currently shut down was chartered by Congress to carry out a statutory mission. The tasks currently compromised involve law enforcement, airport security, food safety, environmental protection, and the management of national parks. Trump’s intransigence is not motivated by the prospect of performing any of these tasks yet more effectively. He is suspending the law in order to browbeat Congress on funding his border wall.

The Senate could bring his unseemly spectacle to a halt by voting to approve House legislation reopening the government, largely on terms that the GOP Senate already approved in 2018. But Majority Leader Mitch McConnell—with the mostly silent support of the Republican Senate majority—has adopted the Garland nomination approach. There will be no vote on the House bills, he says, because the President opposes them. The Senate’s obsequiousness effectively surrenders to a president the power to determine appropriations. There should be veto-proof majorities in both Houses to put government back to work.

The power of the purse is Congress’s most pivotal authority in the constitutional scheme of checks and balances. Congress would abdicate that power should it concede a president’s right to demand funding for a campaign promise as a precondition for funding wholly unrelated parts of the government. Negotiating with an extortionist is to invite more extortion.

In his 1975 article, Paul Brest did not address “the practical problems that confront a legislator whose constitutional obligations conflict with the political demands of his office.” “Perhaps it is naïve,” Brest acknowledged, “to assume that the Constitution will often prevail when political interests are threatened.” But his point still holds: “One can reasonably demand . . . that the lawmaking process take explicit account of constitutional values threatened by pending legislation.” It is no less reasonable to demand that Congress consider the constitutional implications of prostrating itself before a president’s demand for money. The only constitutionally responsible stance is, “Open the government, and then we’ll talk.”

President Trump's Dangerous Civil-Military Relations Precedent: Canceling Military Support for Congressional Travel

Lost in the food fight narrative that has dominated public discussion of the battle between President Trump and House Speaker Pelosi over the partial government shutdown was a disturbing development late yesterday: The President made political use of the armed forces.  He announced that the Speaker’s planned visit to Brussels (NATO headquarters) and Afghanistan “has been postponed,” a delay he could impose because she and her congressional colleagues – as is longstanding practice – would rely on military logistics.

Congress and the public should refuse to tolerate this latest, serious violation of American norms of civil-military relations.

People who have been following the shutdown fight know the context of the President’s decision.  In the months since Democrats won control of the U.S. House in November’s elections, the President has been claiming that there is a crisis at the southern border that requires the immediate appropriation of funds (the current White House figure is $5.7 billion) for completion of a border wall.  This is despite data showing border crossings are down dramatically, warnings that the wall would be a readily evaded new Maginot Line for committed border crossers, no sense of urgency to fund it when Republicans for two full years controlled all branches of government, and the advent of a partial government shutdown that has sent hundreds of thousands of public servants – including at agencies that secure the border – home without pay.  The President has threatened to declare a national emergency and order the military to build the wall.

On Jan. 16, Speaker Pelosi, citing security difficulties due to the furloughs, sent a letter to the President suggesting that he submit his State of the Union address in writing (a tradition until well into the 20th Century) or delay it until the shutdown has ended.  The next day, Trump responded with his own letter, informing the Speaker that she was the one who would suffer a delay: her travel to visit U.S. troops in Afghanistan was off until the shutdown ends.  The President dismissed the Speaker’s official travel as “public relations,” invoked a shutdown that does not include the Defense Department, and paternalistically advised her that “it would be better if you were in Washington negotiating with me.”

Of course, everyone knows what is up.  The President is escalating the political fight in terms of intensity, and scope.  The President is using the military as a political chess piece and pulling its logistical support to Congress as a gambit.

The President has the constitutional authority to order the Air Force not to conduct particular operations, in this case ferrying particular government officials.  But this use of the President’s Commander in Chief authority remains an abuse of authority.

Trump’s bootstrapping the armed forces into his political fight violates longstanding and profoundly important American norms of civil-military relations.  Most notable is the exclusion of the military from partisan politics.  For its part, the military serves the Constitution and the country and does not take sides in factional politics or elections.  Unlike the Roman Emperors who were often on the minds of the nation’s founders, American presidents have no Praetorian Guard as their personal armed posse.  (And for good reason: The praeteorians and other politicized soldiers inevitably started picking leaders who promised payouts and killing officials who fell out of their favor).  American soldiers can vote and opine in their personal capacity on policy matters, but tradition and Defense Department regulations restrict partisan activity.  Presidents, for their part, refrain from ordering the military to do anything partisan.

Longstanding civil-military norms have been at the root of the Pentagon’s so far successful resistance to Trump’s instruction to stage a Red Square-style military parade down Pennsylvania Avenue.  The nonpartisanship and independence of the military are also behind deep discomfort within the military with Trump’s partisan speeches to uniformed personnel (to include telling troops to lobby Congress for his agenda), the President’s possessive references to “my generals,” and suggestions the military will be ordered to execute the President’s campaign promise to build a wall on U.S. soil, instead of civilian authorities.

To be sure, elected officials of all stripes and in both branches like to show support for the troops and veterans.  But signaling appreciation to military personnel who sacrifice for our country is a profoundly different thing than politicians telling the military to do something unusual, or to not do something usual, in support of partisan political maneuvering.

That is exactly what happened here.  The military has long provided logistical support to both elected branches of government when senior officials travel (indeed, I flew “mil air” myself with my Senator boss), without regard to party or the politics of the day.  Trump’s latest norm violation transgressed that tradition.  The message is unmistakable: This President is willing to use the armed forces for political purposes.  In the face of this very worrisome precedent in civil-military relations, an amply funded Defense Department, and in view of his wife’s reported use of “mil air” to fly to Trump’s Florida golf resort the very same day, the stated rationales in Trump’s letter lack credibility.  We all know the score.

If the President does not recognize his error, Speaker Pelosi and the House have options.  The President may tend to treat the military like his corporate subsidiary or personal palace guard, but the Framers gave Congress sweeping power in the Constitution.  Congress can reorganize the federal government at will, and “make Rules for the Government and Regulation of the land and naval Forces.”  Congress has plenary “power of the purse.”

If the President’s flimsy rationales for denying military logistical support to congressional Democrats are tied to funding and business in Washington, then Speaker Pelosi could reasonably respond that the President’s self-dealing vacation travel to Trump resorts is done, too.  And, along the way Congress will do some “good government” legislating that broadly applies, not just to this President and this moment.  The Speaker could stipulate that the House will not approve any appropriations bill that does not bar federal funds for any federal employee to visit any property they own, other than a single declared domicile.  The President and other senior officials who for personal security and national security reasons require government logistical support could travel home “in the bubble,” but should not be permitted to use official business to drive public revenue to their private businesses and properties.

Of course, this should be obvious.  Of course, the President and Speaker should not be grounding each other.  But here we are.  Our overheated political culture that mindlessly partisanizes everything, the President’s norm shredding and authoritarian tendencies, and norm erosion in Congress in recent years are sensationalizing, debasing, and discrediting American governance and public service.  Service members and public employees are being used, and the public trust abused.  Vital guard rails, including longstanding norms of civil-military relations, are being breached.  Public officials and the American people must demand the return of self-restraint, compromise, and respect for non-partisan norms as powerful forces in American politics and governance.

Remembering Patricia Wald

When a person like Patricia Wald passes away it is not only the memories of their great accomplishments that should be evoked, although God knows there are more than can be recounted here, but the small details of their everyday life that often are very telling – for these are the things that make us who we are. One of my more recent memories is of often seeing Pat trudging uphill on Connecticut Avenue, north of the Dupont Circle metro, heading to her apartment. It should be noted that this hill is one that many of our youthful colleagues sought to avoid. Seeing Pat always reminded me of how purposeful, tough, and resilient she was in her career and in life.

I met Pat when I was a very young lawyer in the early ‘70s. In addition to being a mother of five, one of Pat’s greatest legacies is that she was someone who mentored and invested in generations of women lawyers. When women began graduating from law school in significant numbers, she made sure that we were both welcomed into the legal community and that we had professional opportunities to be leaders in the public interest legal world.

She was a trailblazer who was keenly aware of the importance of bringing women professionals along with her. She didn’t just make a name for herself, she used her own time and energy to invest in us – not for personal gain or recognition but because that was who she was – an amazing role model for so many of us who followed in her footsteps.

Even “taking time off” was done the Pat way. Time off raising her kids meant that she was still writing and advocating on behalf of children’s rights and the rights of the disabled, while also finding time to participate in the growth of a robust legal services movement.

In my role as the head of the former Women’s Legal Defense Fund we worked to significantly increase the number of women in the judiciary. Pat’s appointment as the first woman to the U.S. Court of Appeals for the District of Columbia, and its first woman chief judge, was one of our proudest organizational moments and one of the proudest moments of my career.

In addition to being a loving mother, spouse, and a great friend it should be remembered that, whatever her vantage point, Pat always used her extraordinary intellect, skill, legal ingenuity, creativity, and commitment to the law on behalf of the underserved. She could have easily taken another route. But, of course, Pat was never afraid to trudge uphill if it got her where she needed to go – to use the law to make this world a better place.

She will be sorely missed.

Judge Wald, who served on the ACS Board from Jan. 2004 – Dec. 2008, was awarded the Medal of Freedom by President Obama in 2013.

The Barr Memo and the Imperial Presidency

For more information on the Barr nomination from ACS, visit our resource page

Last summer, William Barr wrote a memo for Deputy Attorney General Rod Rosenstein and Assistant Attorney General for the Office of Legal Counsel Steve Engel.  The memo had to do with the Mueller investigation and whether President Trump can be understood to have violated the obstruction of justice statute (spoiler alert:  his answer was an emphatic “no”).  Because William Barr is Trump’s nominee to be Attorney General, the memo has been the focus of attention for what it says about the Mueller investigation and for what it directly implies about that investigation (more spoilers:  (1) Trump can take over, manipulate, or terminate the investigation, and (2) don’t hold your breath waiting to see a Mueller report).

If possible, I would like to focus attention elsewhere – on the ramifications of Mueller’s theory of the President’s constitutional powers for the rest of the government.  Those ramifications are vast and proceed from the memo’s most jaw-dropping passage:  “Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy.  He alone is the Executive branch.”[1]

The conception of presidential power embraced in the Barr Memo goes well beyond the ordinary unitary executive claims.  I have taken to calling it the imperial executive, in part because no Attorney General has ever come so close to accepting Louis XIV’s motto, “L’etat c’est moi.” This theory revives the view of executive power that launched a thousand signing statements, generated the torture memo, and justified warrantless domestic surveillance in spite of the legal prohibitions in the Foreign Intelligence Surveillance Act.  It is impossible to conceive of all the damage this theory will do in the hands of the Trump Administration, and a full catalog would require a book length post.  I would, nonetheless, like to highlight a few implications that strike me as immediately obvious.

The independent agencies are unconstitutional.  William Barr’s view of presidential power would hold independent agencies unconstitutional, overturning nearly a century of Supreme Court precedent and upending dozens of regulatory agencies.  It would be shocking enough for the Barr Memo to assert that the Supreme Court’s most foundational decisions relating to the constitutionality of the regulatory state have been consistently wrong for nearly a century.  The Barr Memo does not even note that it is irreconcilable with these decisions, let alone attempt to explain why they should be disregarded.

The Supreme Court has held that Congress may establish independent agencies – that is, agencies that exercise their power subject to the policies set forth in law and not subject to the President’s political oversight.[2]  The mechanism that renders an agency independent in this sense is a limit on the President’s removal authority; the President may only remove the head(s) of an independent agency “for cause” rather than “at will.”  As then-Assistant Attorney General for the Office of Legal Counsel William Barr put it, “Because the power to remove is the power to control, restrictions on removal power strike at the heart of the President’s power to direct the Executive Branch and to perform his constitutional duties.”[3]  The Barr Memo does not mince words, the President “has illimitable discretion to remove principal officers carrying out his Executive functions.”[4]  On this theory, the President may, for example, order the Chairman of the Federal Reserve to raise interest rates (or not) and then may fire the Fed chairman if he refuses to heed the President’s order.  The President may order the Securities Exchange Commission to undertake certain enforcement actions, or to drop certain actions, and remove any commissioner who objects.  The result would be a dramatic re-working of the administrative state, and a massive aggrandizement of the President’s power.

The Qui Tam provisions of the False Claims Act are unconstitutional.  Then-Assistant Attorney General Barr composed a lengthy legal opinion expressing precisely this view in 1989.[5]  He asserted, “the authority to enforce the laws is a core power vested in the Executive. The False Claims Act effectively strips this power away from the Executive and vests it in private individuals, depriving the Executive of sufficient supervision and control over the exercise of these sovereign powers. The Act thus impermissibly infringes on the President's authority to ensure faithful execution of the laws.”[6]  He also argued that the qui tam provisions violate the Appointments Clause.[7]  The Barr Memo’s commitment to the President holding “illimitable” power over all law enforcement actions on behalf of the United States makes it clear that he continues to view these provisions of the False Claims Act as violations of both the Appointments Clause and the clause vesting the executive power in the President.

The President may prohibit executive branch agencies from sharing information and reports with Congress.  Mr. Barr, in 1989, castigated legislation that the required executive officials to submit reports concurrently to Congress.  Such requirements, he claimed, “prevent[] the President from exercising his constitutionally guaranteed right of supervision and control over executive branch officials.  Moreover, such provisions infringe on the President’s authority as head of a unitary executive to control the presentation of the executive branch’s views to Congress.”[8]  Under this view, the President may order executive branch officials to withhold information or reports that do not support or otherwise accord with the President’s position on a range of issues, from military and foreign affairs policy to climate change.

The President, acting as Commander in Chief, may order the use of torture as an interrogation technique notwithstanding federal law prohibiting it.  The Barr Memo repeatedly asserts that the President’s constitutional powers are illimitable.  One of the President’s most significant constitutional powers is his authority to act as Commander in Chief.  Under the Imperial Executive theory, then, no statute may limit the President’s discretion as Commander in Chief to determine by what means to interrogate enemy combatants.  This is, in fact, precisely the legal theory of the infamous Torture Memo.[9]

The President, acting as Commander in Chief, may order warrantless domestic surveillance despite statutory warrant requirements such as the Foreign Intelligence Surveillance Act.  As with torture, the President’s Commander-in-Chief power includes the authority to engage in surveillance of the enemy.  If this power is illimitable, as the theory of the Barr Memo holds, then Congress may not dictate how the President exercises it, even if that dictate is the protection that before engaging in electronic surveillance the executive first secure a warrant.

The President may initiate and prosecute a full-scale war without first receiving a declaration or authorization from Congress.   The view of illimitable executive power expressed throughout the Barr Memo has been taken to support the claim that Congress’s power to declare war is irrelevant to the President’s power as Commander in Chief to order U.S. troops into combat, including foreign invasions that clearly constitute war in the constitutional sense.[10]  On this view, the function of a formal declaration of war is limited to technical international law consequences and has nothing to do with the President’s power to go to war.

The President alone may determine the nation’s foreign policy.  Since the founding, it has been understood that the President holds extensive power relating to the nation’s foreign affairs.  Future Chief Justice John Marshall’s description of the President’s role, offered during a House of Representatives debate, endures, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”[11]  This expresses the broad consensus that the President speaks for the nation and serves as our chief diplomat.  It does not, however, follow that the President is exclusively authorized to determine the content of the nation’s foreign policy.  Indeed, numerous powers assigned specifically to Congress[12] appear plainly to contemplate a significant legislative role in this area.  In a 1989 memorandum, Mr. Barr opined that “[i]t has long been recognized that the President, both personally and through his subordinates in the executive branch, determines and articulates the Nation’s foreign policy.”[13]  This claim was based on broad dicta[14] that the Supreme Court has since repudiated.[15]  As the views expressed in the 1989 Memo are consistent with the approach of the 2018 Barr memo – insofar as each minimizes or ignores the existence of relevant legislative powers – it appears that Mr. Barr continues to adhere to the position he expressed in 1989.

Statutes should be read to relieve the President of statutory obligations.  The Barr Memo applies the so-called clear statement rule in a manner that grants the President a broad exemption from the obstruction-of-justice statute.  According to the Barr Memo, “statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.”[16]  The Barr Memo ignores two predicates for the application of the clear statement rule:  first, the statute must be reasonably susceptible of an interpretation that does not include the President; and second, the application of the statute must involve more than a hypothetical or “possible” constitutional conflict, it must create a serious and unavoidable constitutional conflict.  Application of the obstruction of justice statute to the President satisfies neither of these predicates.  Even more troubling is what this loose application of the clear statement rule would mean across the spectrum of federal statutes.  The President would be exempt from broad swaths of federal criminal laws, not to mention civil and administrative statutory requirements.[17]  As I have explained elsewhere, applied without rigorous application of its predicates, the clear statement rule “is a sort of magic wand that allows the lawyer wielding it to make laws (and legal constraints on the President) disappear.”[18]

This is not an academic concern.  President Trump has made it clear that he plans to explore pursuing to their utmost his statutory emergency powers to deal with issues such as the government shutdown and the construction of a wall along the southern border.  It is crucial that the Attorney General be committed to facilitating the President’s policy agenda in a manner that fully complies with federal law – both constitutional and statutory.

* * * * * *

We live in troubled times, marked by deep political divisions.  In such times, it is especially crucial that our legal institutions remain anchored to sound legal principles.  Our President has declared “I have [the] absolute right to do what I want to do with the Justice Department.”[19]  Public confidence in the rule of law depends on there being an Attorney General who will not allow the President to do whatever he wants with the Justice Department.  William Barr’s views of presidential power are so radically mistaken that he is simply the wrong man, at the wrong time to be Attorney General of the United States.

*Professor, Georgia State University, College of Law.  Affiliation listed for identification only.

[1] Memorandum from Bill Barr to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, re: Mueller’s “Obstruction” Theory, at 9 (June 8, 2018)(emphasis in the original)(n.b. The Barr Memo is not paginated.  Pin cites are therefore estimates).

[2] See Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935).

[3] Common Legislative Encroachments on Executive Branch Constitutional Authority, 13 Op. O.L.C. 248, 252-53 (1989).

[4] The Barr Memo at 9.

[5] The qui tam provisions authorize private individuals, whistleblowers, with knowledge of fraud being perpetrated against the United States to bring claims against these perpetrators on behalf of the United States.  This program has been remarkably successful in helping the federal government combat fraud.

[6] Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. O.L.C. 207, 210 (1989).

[7] Id. at 209-210.

[8] Common Legislative Encroachments, supra note 3, at 255.

[9] Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogations under 18 U.S.C. §§2340-2340A (August 1, 2002).  The Torture Memo was wrong for many reasons.  The one most relevant here is that it ignored the existence of numerous powers authorizing Congress to enact the Anti-Torture Act, including Congress’s power to make rules for the government and regulation of the land and naval forces, to make rules regarding captures, and to define and punish offenses against the law of nations, as well as the Necessary and Proper Clause.

[10] See, e.g., Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sep. 25, 2001).

[11] 10 Annals of Cong. 813 (1800).

[12] See, e.g., U.S. Const. art. I, §8, cl. 3 (regulate foreign commerce); id. cl. 10 (define and punish offenses against the law of nations).

[13] Common Legislative encroachments at 256 (emphasis added).

[14] See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

[15] See Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2079 (2015).

[16] The Barr Memo at 6.

[17] See, e.g., Daniel Hemel and Eric Posner, The President Is Still Subject to Generally Applicable Criminal Laws:  A Response to Barr and Goldsmith, Lawfareblog (Jan. 8, 2019).

[18] See Clear Statement:  The Barr Memo is Disqualifying, Take Care Blog (Jan. 14, 2019).  See also H. Jefferson Powell, The Executive and the Avoidance Canon, 81 Ind. L.J. 1313 (2006).

[19] Michael S. Schmidt and Michael D. Shear, Trump Says Russia Inquiry Makes U.S. “Look Very Bad,” N.Y. Times (Dec. 28, 2017).