What Can We Learn from the CFPB’s Spring 2020 Unified Agenda Entries?

A version of this blog also appeared on the Economic Policy Institute website.

This week, Director Kraninger of the Consumer Financial Protection Bureau (CFPB) is slated to appear before the Senate Banking Committee and the House Financial Services Committee in connection with the CFPB’s SemiAnnual Report. As we go into these hearings, it’s worth reviewing what we know about the CFPB’s current regulatory agenda.

At the end of June, the CFPB, along with all of the other federal agencies, released its rulemaking agenda through April 2021. As we at the Consumer Rights Regulatory Engagement and Advocacy Project (CRREA Project) discuss in Decoding the Unified Agenda, everything is in the Unified Agenda—what an agency is working on, what it plans to do next, and when it anticipates taking that next step. Rules are characterized as significant or nonsignificant, the agency contact for the rule is listed (in the CFPB’s case, this is almost always the attorney designated as the team lead on the rulemaking), and the history of the rulemaking project are all laid out.

Looking at an agency’s Unified Agenda also tells the reader something about the agency’s current priorities and rulemaking philosophy. The CFPB, in addition to its agency rule list, issues a blog post, which updates the Unified Agenda to reflect what the CFPB has done between when it submitted its Unified Agenda entries and when the Unified Agenda was released, and a preamble, which the CFPB is unique among agencies in doing twice a year).

The CFPB’s Regulatory Response to COVID-19

Comparing the Unified Agenda entries with the blog, the CFPB showed impressive discipline in sticking to its rulemaking schedule, despite COVID. (As noted in the blog post, this year the time lag between when the Unified Agenda entries were submitted and when they were published straddled the pre- and post-COVID worlds). The CFPB mostly met its pre-COVID target dates, seldom falling more than a month behind. For example, although the payday rule was widely rumored to be scheduled for issuance in late April, the Unified Agenda set June 2020 as the month for its issuance. In the end, the CFPB released the rule on July 7, shortly after the Supreme Court upheld the constitutionality of the CFPB in Seila Law v. CFPB. Holding tight to a rulemaking schedule requires discipline in the best of times, and the transition to remote work plus the general strains of pandemic life must have made sticking to the calendar even harder this year.

Reviewing the blog, and the CFPB’s actions, suggests the tunnel vision necessary to maintain that discipline. The blog’s nod to COVID-related work is a link to a generic supervisory bulletin page. While many items on that page post mid-March 2020 are styled as COVID-related, they read like a grab bag of mostly minor regulatory adjustments. The actions taken show a consistent bent towards favoring flexibility for industry and encouraging faster access to credit, regardless of price or terms, but lacking is a sweeping regulatory adjustment to COVID, either favoring consumers or industry.

Moreover, the two congressionally-mandated, consumer protective rulemakings, on Property Assessed Clean Energy (PACE) loans and small business lending data collection, both remain in pre-rulemaking status and have not advanced since the Fall 2019 Unified Agenda. Among the very first responses the CFPB took to the pandemic was to suspend the data collection necessary to advance those rulemakings. The small business lending data collection remains slated for the release of an outline of the rule in September, thanks no doubt at least in part to the settlement of the lawsuit brought by the California Reinvestment Coalition and others to force the CFPB to restart that rulemaking. But the only next step listed for the PACE rulemaking is “pursuing quantitative data,” and no further mention of PACE is made in the blog. Apparently then, PACE will have to wait behind other, deregulatory rulemakings, such as the CFPB’s “reconsideration” and limitation of the data points collected under the Home Mortgage Disclosure Act.

The CFPB’s Regulatory Philosophy

What is most striking—and most useful to advocates—is what is revealed about the current agency’s rulemaking philosophy. Partway through the CFPB’s blog announcing the Unified Agenda comes the tell: “[W]e have continued to move forward with our other regulatory work, prioritizing activities intended to protect the stability of the financial sector and enhance its recovery . . . .” Consumer protection is an “as well” afterthought, but not the central mission of this CFPB. The preamble expands on this, explaining, “If the Bureau has discretion, the Bureau will focus on preventing consumer harm by maximizing informed consumer choice, and by reducing unwarranted regulatory burden which can adversely affect competition and consumers’ access to financial products and services.”

Regardless of what one thinks of this approach to the CFPB’s mission, this nonetheless provides a roadmap for advocates. Focus your arguments on competition, access, and choice. Draw attention to places where market practices result in consumers’ lacking adequate information to make decisions or where competition fails. This framework makes revisiting payday hard, but suggests fruitful engagement in debt collection and mortgage servicing where consumer choice is irrelevant as consumers have no choice over their debt collectors or mortgage servicers. Arguments about stability in the financial markets are likely to carry more weight than petitions for equity or consumer protection against mainstream financial practices. Access will trump protection at this CFPB, so what are the arguments about how the proposals on the table will affect access or impose costs on business interests? Are there places where streamlining regulations results in consumer benefits? Now is the time to focus on those areas.

Effective regulatory advocacy requires sustained engagement, year after year, and meeting the agencies on their own terms. Within the current CFPB agenda, there are places for advocates to advance racial and economic justice, if they focus on the arguments the agency is open to hearing. In Working with Cost-Benefit Analysis, we at CRREA Project lay out some strategies for doing this. We highlight the importance of quantifying what you can, whether through surveys or case file reviews, and situating problems in the broader context. And, while commenting on proposals is always important, and our How to Comment- one-page checklist should help with commenting, meetings with staff, engagement with Congress on oversight, including in connection with the upcoming hearings, letters to the CFPB, press attention, and even litigation remain important tools for advocates.

Diane Thompson is an Open Society Foundations Leadership in Government Fellow and the founder of the Consumer Rights Regulatory Engagement and Advocacy Project. Previously she was Deputy Assistant Director and Acting Assistant Director of the Office of Regulations in the Consumer Financial Protection Bureau.

Wesley Purkey’s Execution Should Shock America’s Conscience

Any doubts remaining about the Trump administration’s disregard for the rule of law, for the rights of its citizens, and for basic human decency were laid to rest this week. On Tuesday, it illegally executed Daniel Lee without a valid warrant after leaving him strapped to the execution gurney for over four hours. Two days later, the administration illegally executed my client, Wesley Ira Purkey, a 68-year-old man so impaired by Alzheimer’s disease, schizophrenia, and brain damage that he believed he was being killed in a conspiracy of retaliation for complaining about prison conditions.

At the time of his death, Wes’s dementia had progressed to the point that he could not remember the names of loved ones. He believed that prison staff were putting poison and feces in his food and urinating on his laundry, forcing him to live in a cell “caked in feces.” He believed there was a vast government conspiracy against him, often viewing even his own lawyers as participants. In other words, Wes had no rational understanding that the government planned to kill him for a crime he committed years ago, even though, before dementia exacerbated his cognitive decline, he had expressed profound remorse for his crime.

The law has long been clear that executing a person whose mental illness prevents him from understanding the reason for his punishment is “abhorrent,” and violates the Eighth Amendment’s Cruel and Unusual Punishment Clause. From the time the government first set an execution date for Wes last summer, we asked the court to hold a hearing on his incompetency – a claim we could not legally raise until the execution was scheduled – and to order the government to turn over extensive medical records supporting that determination.

On Wednesday morning, the very day Wes was scheduled to die, a federal district judge in Washington, D.C., issued an injunction, finding that we had provided substantial evidence of his incompetence supported by extensive expert reports and declarations. The government, on the other hand, “provided no independent evidence of competence.” But rather than cooperating in a process to determine whether Wes was competent to be executed, the government appealed.

Later that same day – again, the day of Wes’s scheduled execution – our team discovered that even as the government raced to execute him, it had been withholding scientific evidence documenting his advancing dementia. We immediately brought this development to the attention of the Court of Appeals for the D.C. Circuit and the Supreme Court.

The injunction entered by the district court was upheld unanimously by a three-judge panel of the appellate court. And yet, in the early hours of Thursday, the district court’s injunction was vacated by a 5-4 Supreme Court decision, with no explanation of the majority’s rationale. In a dissent joined by Justices Breyer, Ginsburg, and Kagan, Justice Sonia Sotomayor opined that the government had failed to rebut Wes’s incompetency claim and that our decision to bring that claim in the District of Columbia, and not Indiana, should neither preclude him from having the claim adjudicated nor deprive the district court from entering an injunction to assess its jurisdiction. “[P]roceeding with Purkey’s execution now,” she wrote, “despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.”

For eight months, we had been pushing for a court to review his claim of incompetency. At 11:59 p.m. on July 15, three hours before the Supreme Court’s order, the execution warrant for Wes expired. The ruling from the Supreme Court came at approximately 2:45 a.m. Under federal law, the expiration of the July 15 warrant should have precluded any execution without sufficient notice of a new date and time for the execution and we should have had time to pursue Wes’s competency claim in Indiana. But reporters in Terre Haute tweeted that the government was moving forward with its plans to execute Wes – the same lawless, in-the-middle-of-the-night move it the government had made to execute Daniel Lee just two days before.

We suddenly had only hours to try to get a court to grant this constitutionally required review of his competency.

Minutes after the Supreme Court’s ruling, we filed a habeas petition and sought a stay of execution in the Southern District of Indiana. The district court granted a temporary stay for a few hours only to issue an opinion that said the execution could go forward because by filing the claim in the wrong court we had committed an unfixable error, and although “lamentable” that Mr. Purkey’s constitutional claim could not be heard, it would not be equitable to stop the execution. This unprecedented ruling – penalizing Wes because we filed a claim that eight federal judges had substantively reviewed and found meritorious – cited no law for its conclusion that the courthouse doors in Indiana could be closed to his claim.

We immediately appealed to the U.S. Court of Appeals for the Seventh Circuit but we, and most importantly, Wes Purkey, ran out of time before the Seventh Circuit could intervene. At 8:19 a.m. – with the appeal pending, and without sufficient notice – the government executed Wesley Ira Purkey.

Wes Purkey’s execution should shock the conscience of anyone who cares about justice and the rule of law. The government used every weapon in its arsenal to prevent any court from deciding the merits of his incompetency claim, even as evidence in its own possession showed Wes’s mental capacity was profoundly impaired. And by barreling ahead to execute during the COVID-19 pandemic, the government recklessly placed hundreds of people at serious and unnecessary risk.

We should expect more of our federal government than the rushed execution of a damaged and delusional old man. As the district court in Washington, D.C., quoted in granting the short-lived injunction, “the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate’s constitutional rights.” What the government did here is truly abhorrent.

Rebecca E. Woodman is an attorney in Kansas City, Missouri, and served as lead counsel for Wesley Purkey.

Voting by Mail Is Essential for Voters with Disabilities, but It’s Not Enough

A do’s and don'ts guide to increase accessibility for voters with disabilities.

This guide originally appeared on the ACLU website.

COVID-19 highlighted the need for universal access to no-excuse vote by mail. For many voters with disabilities, vote by mail has always been the safest and most accessible way to cast a ballot, because it allows them to avoid the challenges of getting to the polls, waiting in line, and facing physical barriers at the polling place. While in-person polling places are required to be fully accessible, we still see violations such as lack of ramps or elevators, voting machines not properly set up, and facilities without adequate signage indicating accessible routes or parking.

States must act now to enact universal, no-excuse vote by mail. Additionally, states must take steps to support accessibility, while also ensuring that safely voting in person remains an option.

Below, we outline key steps to increase accessibility for voters with disabilities.

DO: Let everybody request a mail-in ballot online

States should automatically send mail-in ballots to all registered voters, rather than maintaining a more complex “opt-in” system for voting by mail, where voters must request a ballot. But if it’s not possible to send ballots automatically, then the process for requesting a mail-in ballot should be quick and easy, and voters should be able to make these requests online or by phone.

To further improve accessibility, states should ensure that all election websites comply with accessibility guidelines so that every voter can easily access voter registration, procedural guidelines, ballot applications, and information about candidates and ballot initiatives.

DO: Let voters receive ballots electronically

Voters with disabilities who would like to vote from the safety of their homes should be able to receive their ballots on an electronic interface, mark those ballots using the accessible technology they have at home, and then print out and mail their voted ballots. Electronic ballot marking allows voters with “print” disabilities (including those with visual impairments) to read and mark their ballot using the accessibility features on their personal devices. Commonly used assistive technologies include screen readers, digital magnifiers, and text-to-speech software. Several states, including Ohio, Maryland, and Oregon, have already made electronic ballot marking systems available for voting by mail.

Electronic ballot marking is not equivalent to online voting. While an electronic ballot marking system allows voters to receive their ballots via an electronic interface, the voted ballots are not submitted electronically. Once completed, the ballots are printed out and mailed back to the local election office. Online voting, by contrast, would involve casting and submitting a completed ballot over the internet. Currently-available online voting options cannot guarantee a valid and secret vote.

DON’T: Impose signature match requirements on voters with disabilities

Signature match requirements present an additional barrier to voters who have conditions that make it hard to consistently sign their name. States should waive these requirements for voters with disabilities.

DON’T: Require witnesses or notarization

In some states, people who vote by mail must get their ballot envelope notarized or provide a witness signature. While witness and notarization requirements present specific challenges for people with disabilities, they present even greater barriers during the COVID-19 pandemic. Social distancing guidelines currently restrict the ability of all voters — not just those with disabilities — to find a physically-present witness or notary.

DO: Train election workers on accessibility

Election officials should undergo virtual training on how to assist voters with disabilities in navigating election websites and marking their ballots electronically. Election officials should also learn how to respectfully interact with voters with disabilities so they can provide helpful information and services without infringing on a voter with a disability’s right to a private, independent vote. All staff responding to election-related inquiries should be able to answer questions about accessible voting options.

Preparing election officials for these tasks will help voters with disabilities have a dignified voting experience.

DO: Spread public awareness about accessible voting options

The reforms outlined here will have the most impact if voters are aware of the voting options and resources available to them. Election officials should inform all voters by contacting them directly through reasonably available methods such as mail, email, phone calls, and text messages. Local disability advocacy organizations should serve as key partners on election planning and disseminating voting-related information to people with disabilities.

States must act now to ensure that all voters, including voters with disabilities, can vote safely in the age of COVID-19, and without unnecessary barriers or burdensome requirements.

The vote by mail reforms we’re seeing in many states are efforts to improve accessibility during the pandemic. We should use the opportunity to improve accessibility for all voters, including voters with disabilities. Voting rights are disability rights.

For more information on increasing accessibility for voters with disabilities — and all voters — see our guide for election officials.

Ever-Expanding Immunity for Religious Institutions Augurs Trouble for Worker Protections

In Our Lady of Guadalupe School v. Morrissey-Berru, religious schools won a First Amendment right to hire and fire their teachers because of their race, sex, disability, age, or any other reason. In a 7-2 decision, the Court dramatically expanded the “ministerial exception,” a doctrine that permits religious institutions to choose their “ministers.” This expanding realm of religious employer immunity from law portends danger for other worker protections and for the equality of workers in healthcare, higher education, and beyond.

Just eight years ago, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court first recognized the “ministerial exception.” Chief Justice Roberts wrote that a church’s independence “on matters of faith and doctrine requires the authority to select, supervise, and if necessary remove a minister without interference by secular authorities.” The Court unanimously held that the First Amendment exempts religious institutions from civil rights laws when they employ ministers.

In principle, virtually everyone agrees that churches should be able to make decisions about their ministers that align with their religious tenets, even biased ones. The doctrine was said to explain why the Catholic Church can have only men as leaders within the hierarchy.

Hosanna-Tabor, however, took the doctrine further. The church does not need religious reasons for its employment decisions. Nor is a minister limited to those with leadership roles. Instead, the Court determined that ministers could be identified by looking to the employee’s title, religious training, the employee’s and employer’s understanding of her role, and whether her duties included “important religious functions.” Justice Alito concurred but argued that a “focus on the function performed by persons who work for religious bodies” would provide more clarity.

In Morrissey-Berru, his test becomes the Court’s position. As elementary school teachers at Catholic schools, both plaintiffs taught some religion and prepared and accompanied children to religious celebrations. These duties rendered them ministers, according to the Court. “What matters, at bottom,” Justice Alito wrote, “is what an employee does.”

The emphasis on employees, however, is not reflected in his analysis. As Justices Sotomayor and Ginsburg noted in dissent, the teachers “taught primarily secular subjects, lacked substantial religious titles and trainings, and were not even required to be Catholic.” At bottom, looking to the employees’ activities seems to cut in the opposite direction.

Instead, the religious institution stands at the center of the opinion. What it does, how it perceives its employees, and what it tells them determine whether those employees are ministers. Three times Justice Alito repeats that educating and forming students in the faith “lie at the very core of the mission of a private religious school.” It is this mission, he suggests, that makes schoolteachers ministers. It is important, not how workers think of themselves, but that that their schools “saw them as playing a vital part in carrying out the mission of the church.” He emphasized that their contacts and handbooks also “specified in no uncertain terms that they were expected to help the schools carry out this mission.”

While he purports to focus on employees, Justice Alito’s test seems to distill to three questions: does the organization have a religious mission, does it perceive the employee to advance that mission, and do formal documents like employment agreements indicate a religious role? The employee’s perception of her role, how she spends her time at work, how she is trained, and what she is called recede from the analysis.

In Morrissey-Berru, the Court treads perilously close to saying a minister is whomever an employer says she is. Indeed, Justice Thomas joined by Justice Gorsuch applauds this step and encourages further deference. Concurring, he wrote that if the U.S. Conference of Catholic Bishops say that “Catholic teachers play a critical role” in the Church’s ministry—that should be enough.

This laser focus on the institution, rather than the employees, is consistent with Justice Alito’s extreme deference to religious employers in other cases. His opinion in Burwell v. Hobby Lobby and his concurrence in this term’s Little Sisters of the Poor v. Pennsylvania both indicate that courts should play no role in determining whether a regulation—there the contraceptive mandate—substantially burdens an employer’s religion. “It was not for us to say that their religious beliefs are mistaken or insubstantial.” Instead, it was for the employers to determine.

So what does this emphasis on institutional autonomy mean? Most immediately, Morrisey Berru devastated worker protections in religious schools. For decades, teachers in religious schools have been able to sue when they were fired for their race, disability, pregnancy through use of IVF, or divorce. Now, a rule said to ensure the Catholic Church didn't have to hire women as priests has turned thousands of women into ministers of that church.

The Court’s decision also cuts back the gains from last month’s landmark win in Bostock v. Clayton County. LGBTQ workers newly safeguarded by Title VII of the Civil Rights Act still can be fired if they work for religious schools (and perhaps other religious institutions).

In the future how dramatic will the expansion of institutional immunity be after Morrissey-Berru? First, from which laws are schools now exempt? Morrissey-Berru involved antidiscrimination statutes like the Americans with Disabilities Act and Title VII of the Civil Rights Act. But other workplace protections seem likely to be affected. Religious institutions unsuccessfully demanded a right to violate the Fair Labor Standards Act the past. Might they now claim a constitutional right to hire only ministerial employees who will work for less than minimum wages? Labor law might be next, the National Labor Relations Board currently doesn’t require religious colleges to bargain collectively even with adjunct faculty. Will this become a Constitutional rule?

Second, which employees will be affected? If a religious mission and performance of duties important to the mission suffice to make an employee a minister, employees at a range of institutions likely will discover they're ministers only after they've been fired for getting breast cancer, having a baby, or celebrating their marriage. As the plaintiff’s counsel observed, “Countless employees of religious institutions — not just lay teachers, but also nurses in hospitals, counselors in summer camps, cooks and administrators in social services centers, and other categories of workers — perform duties that their employers sincerely consider important to their religious missions.”

Finally, which institutions can claim this new religious privilege? While the Supreme Court’s decision was specific to religiously affiliated elementary and secondary schools, its reasoning easily transfers to other religious organizations. Consider the Little Sisters of the Poor, a Catholic-affiliated nursing home chain. Just this term, the Court described the Little Sisters as “called by their faith to care for their elderly residents” and to “constantly live out a witness” to the dignity of human life. It has a clear overarching mission to care and treat patients with dignity and probably assigns many employees this role. It likely also provides in its employee handbook, like other Catholic healthcare providers do, that staff further its mission consistent with Catholic values. Will its employees also be ministers?

As the ministerial exception expands, for-profit corporations may seek out exemption as well. In Hobby Lobby, the Court insisted that for-profit organizations had the same claim to religious exercise as did non-profit organizations under the Religious Freedom Restoration Act. It later assumed that a for-profit cake shop could make out a constitutional claim to religious liberty. And in one of the cases consolidated with Bostock, a for-profit funeral home initially argued that the ministerial exception permitted it to fire Aimee Stephens, because she was transgender.

All this may sound far-fetched. But the privilege to violate employer protections with impunity is valuable. While usually religious exemptions don’t offer financial advantages, here they do. And the ministerial exemption may creep into multi-billion dollar Catholic healthcare systems and eventually into the for-profit world.

The Dark Side of Mazars—Should a New York Prosecutor Have More Power to Check the President than the House of Representatives?

For the first time in almost 100 years, the Supreme Court has placed limits, of its own design, on Congress’s power to check the President. In general, pundits have failed to emphasize this rather dramatic legal development, celebrating instead that the Supreme Court rejected the President’s “I’m-absolutely-immune” arguments in both Trump v. Vance (emerging from criminal proceedings in New York) and Trump v. Mazars (emerging from congressional subpoenas related to money laundering and foreign influence on elections). Rejecting the Trump lawyers’ extreme unitary executive arguments is good news for the rule of law. But Mazars has a darker side: the Court’s latent hostility to Congress is on full display when one compares the ruling in Mazars to that in Vance. Taken together, the cases raise powerful questions about the separation of powers that only the future will decide. Put bluntly, why should the citizens of New York (or any other state for that matter) have an easier time checking the President than the citizens of the entire nation (as reflected in the House of Representatives)?

The New Presidential Exceptionalism

The Mazars opinion states that “all citizens” have a duty to comply with congressional subpoenas. But that is not the Mazars holding. One citizen has a different duty—the President. When Congress seeks personal documents from you or me, or more likely, corporations like Enron or Facebook, the Court has granted Congress great leeway. A capacious standard has, until now, applied to Congress’s efforts to expose criminal activity within the executive branch. As the Supreme Court wrote in 1927, in McGrain v. Daugherty, when Congress was investigating the Attorney General (AG) for failing to prosecute fraud within the administration: “we are of opinion that the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.” The Court presumed Congress had a proper purpose, even though lawyers argued that Congress was trying to “prosecute” the AG, an argument the Court rejected. (In truth, the Congress can never prosecute because it cannot punish an individual citizen with jailtime).

Enter Mazars, which places a far heavier burden on Congress when investigating the President. Do not forget that the subpoenas in these cases were directed to private entities—third party banks and accounting firms. The President sued to stop those third parties from complying—in his personal capacity. But that did not seem to matter: now there is one standard for every citizen and corporation in America—and a different standard for the citizen who is President. Under Mazars, a president’s personal records can only be subpoenaed if the request is (1) such that no “other sources could reasonably provide Congress the information it needs in light of its particular legislative objective”; (2) “no broader than reasonably necessary to support Congress’s legislative objective;” (3) based on “detailed and substantial” evidence of a legislative purpose; and (4) “carefully scrutinized” to avoid burdening the President’s attention to his official duties. If that were not enough, these standards may well be impossible to meet in cases where Congress is attempting to regulate the Presidency. (The White House is in fact highly regulated, but Trump’s lawyers and some members of the Court have invited the lawyers on remand to make an argument that the President cannot be regulated.)

The Mazars rules appear nowhere in the text of the constitution nor in any prior case. As Justice Thomas wrote, in dissent, the court provides “a nonexhaustive four-factor test of uncertain origin.” These rules apply to only one citizen: the President. More than a decade ago, the Court reaffirmed the principle that Presidents and citizens should abide by the same rules when it comes to their private behavior. President Clinton once argued that he could not be sued over a personal matter that occurred before his Presidency—claims of sexual harassment prior to his taking office. The Supreme Court replied that the President was not above the law. Two things have happened since Clinton v. Jones was decided: the court’s members have changed to include those who believe in a strong theory of the presidency and its corollary—contempt for Congress. Second, in Clinton, it was the courts, not the Congress, who was doing the investigation.

That brings me to the real winner in these cases, at least in terms of constitutional power—the judiciary. In Vance, where financial records were sought for a grand jury investigation, the court was quite deferential, rejecting all the President’s arguments including the argument that the subpoena had to have a “higher” showing because its target was the President. In Mazars, Congress was not given that same deference: precisely because the President was involved, a “higher” standard was imposed, one to be administrated by the courts. When given a choice of investigators—courts or Congress—courts chose themselves. One rule applies to judicial investigations of Donald Trump, another to congressional investigations.

Lawyers are likely to embrace that result because politics is messy and given to partiality in ways that judicial proceedings avoid. Congress should be treated differently, they might say. But the Supreme Court rejected that approach in 1927 in McGrain v. Daugherty, presuming Congress’s legitimate motives despite a “spirit of hostility” toward the Attorney General. More importantly, when it comes to every other citizen in the United States, and every other official, McGrain remains good law, recognizing Congress’s broad power of “inquiry.” Why should Congress be able to be more intrusive with respect to my private records than with the records of the President? Should not Congress have more power to investigate the President, who is elected to serve the people, than the average citizen?

The Separation of Powers: Did the People Lose?

No one should be confused that, in the battle between Congress and the President in Mazars, the Supreme Court chose the President. At the very least, they delayed the case in a way that makes it unlikely that Congress will see the Trump tax records in the short term and without extensive briefing on a new and vague standard. Nor should anyone be confused that the Vance Court applied a different standard. For students of the separation of powers, putting the cases together raises questions. Why it is that a single district attorney in New York has more power to check the President than the entire House of Representatives? Does not this prefer the voters of New York to the voters of the entire country? Perhaps there are advantages to this system but, if one believes, as I have written, that the separation of powers exists to protect voter choices, a choice to prefer fewer rather than more voters raises questions. (And if you don’t believe me, see Stephenson & Nzelibe).

Conventionally, lawyers like to think of constitutional power as an activity to which they attach adjectives. There is something called “executive power” and the President has it. There is something called “legislative power” and the Congress has it. There is something called “judicial power” and the courts have it. The only problem with this adjectival theory is that it is incomplete in most cases and wrong in others. It is wrong as a matter of fact: in the administrative state, for example, the executive department adjudicates and legislates daily. It is also wrong as a matter of the text and history of the constitution. The text tells us that the departments share powers; if they did not, then they could not check each other. Take the President: he has the executive power listed in Article II, but also the veto power in Article I (the “legislative power” article) meaning that he has “legislative” powers. Congress, has “all legislative powers,” granted in Article I but Article I’s “necessary and proper clause,” U.S. Const. Art. 1, sec. 8, cl. 13, grants Congress the power to legislate to “execut[]” all enumerated powers as well as “all other powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.” (See Mikhail). Without the Departments—Treasury, State, Justice—created by Congress, the President would be sitting in the White House, alone.

Constitutional power is not only a type of activity, but the essence of democracy: popular voice and accountability. Long ago, I wrote that if adjectives do not work well to separate power under the constitutional text, the electoral provisions do a better job of actually working to separate the branches because they give elected officials electoral incentives to push back. In relatively small groups, the people elect the entire House of Representatives every two years, and a differently aggregated set of people – aggregated by state – elect some members of the Senate every two years. Every four years, a different aggregation of people, the nation, elects the President. Elected officials have incentives to prefer the group of people they represent (relative to other groups), and to align themselves with their own institution. Those incentives produce institutional conflict. No one teaches these basic clauses in constitutional law courses, see U.S. Const. Art. I, secs. 2-3, Art. II, sec. 1, but without them, we have no democracy and we have no checks and balances.

If this is right, the constitution gives power to the House (and those who elect the House) to check the President. That is precisely what happened when the House subpoenaed President Trump’s personal financial records. It follows that to limit the power of the House to check the President is to increase the President’s power. More worrisome, for the future, however, is not Mazars alone (most presidential candidates fully disclose their financial records) but Mazars and Vance put together. It is now just as easy, if not easier, for state prosecutors in a single state to investigate a president for potential criminal activity (don’t forget that the criminal law is vast, any false statement will do), than the entire House of Representatives. Perhaps this will help Presidents find a less politicized forum in which to settle unfounded allegations (remember the Obama birther claim); or perhaps it will embroil the state courts—and future Presidents—in highly partisan investigations politicizing the rule of law far more than anyone expected.

The Administration’s Latest Blow to International Students and How Universities Can Respond

Amid the ongoing health and safety challenges posed by COVID-19, colleges and universities across the country have been planning for the fall semester on the assumption that, whether they offered classes entirely online or through a hybrid approach with both online and in-person classes, their international students would be able to continue their studies while living in the United States.

This assumption seemed reasonable under guidance that Immigration and Customs Enforcement (ICE) had issued in March suspending its typical restriction for international students studying on an F-1 visa – the primary visa for international students studying full-time at universities in the United States – of only a single course (or its equivalent) online in a term. ICE’s guidance at the time stated this revised policy would be “in effect for the duration of the emergency,” so universities fully expected it would continue to apply in the fall given the current course of the pandemic.

All that changed on July 6, when ICE reversed its spring guidance through a news release, a somewhat more detailed message to schools, and a Frequently Asked Questions (FAQs) document. This new policy, issued without any advance notice or opportunity for affected parties to comment, prohibits international students from remaining in the United States if their university will offer courses exclusively online for the fall semester. International students may remain in the United States, or enter the United States, only if they are taking a portion of their course load for the fall semester in person and their school certifies they are taking no more online classes than necessary to make normal progress in their program. In the announcement, ICE indicated it would issue a temporary final rule codifying this new policy, although it gave no timetable for doing so beyond the “near future”.

Making a bad situation even worse, the ICE directive provides schools little time to comply with its various requirements. Universities which plan to offer their instruction entirely online must notify ICE by July 15, less than 10 days after the new directive was announced. While universities that plan to offer hybrid instruction have until August 4 to notify ICE, they must submit a new compliance form for each international student by that date. As an official at Indiana University explained, reissuing the new forms to all international students is “not trivial … [i]t’s an all-hands-on-deck exercise.” It also may be impossible for some schools, as the deadline for students to register for fall classes is after August 4th at several universities.

Under ICE’s new policy, international students in programs that are entirely online for the fall face several difficult options. They can, as ICE suggests, try to transfer to a university offering some in-person education – though that will be difficult to do so close to the beginning of the semester. Or they can depart the United States and try to continue their studies online while living abroad.

This is easier said than done, as leaving the United States presents serious financial, health, and educational challenges for many international students. Last-minute international travel is often expensive, and many countries are maintaining travel restrictions that will make it difficult or impossible for international students arriving from the United States to enter. These students may also face significant expenses for breaking leases or other commitments they made when they planned to study in the United States during the coming year. Travel during the pandemic itself also presents well-known health risks. And once in another country, students may have limited access to the internet or may have to navigate the challenges posed by living in a much different time zone from where their classes are being offered. Yet if international students are in an all-online program and do not leave the United States, ICE has made clear they will face deportation and potentially other immigration consequences.

It is not only universities that plan to offer instruction exclusively online that are affected by ICE’s abrupt reversal. Even at schools offering a hybrid of in-person and online classes, some students still will not be able to enroll in the limited number of in-person courses that will be offered. Any international students in this position will be out of compliance with the new ICE guidance, as it includes essentially no flexibility on the requirement to take at least one class face-to-face to maintain their visa status. Moreover, the ICE directive states that if schools offering hybrid programs shift to all online instruction mid-semester due to health and safety concerns, the international students will still be subject to the same restrictions as those at schools that offered all online programs from the outset of the semester – they will need to transfer to a school that offers in-person classes or depart the United States.

From virtually every perspective – health, educational, and financial – this new approach makes little sense, particularly given that COVID-19 cases continue to increase in many parts of the country. The true motivation for the policy may actually be an effort to force universities to abandon plans for online only instruction in the fall or to exploit the COVID-19 crisis to achieve the current administration’s objectives to reduce legal immigration.

Perhaps unsurprisingly, university leaders widely denounced the policy, emphasizing the central role that international students play as part of their communities and vowing to do whatever they could to reverse the policy or limit its effects.

So, what can universities do to support their international students in light of this new policy? They have three main paths:

Adjust their plans for the fall to create targeted in-person opportunities for international students. For schools that are planning to offer instruction entirely online in the fall, it is likely they will need to provide targeted opportunities for international students to take some of their courses in person. ICE has failed to make clear how much in-person instruction is necessary for international students to maintain their status, but many believe that a single in-person class, or even a single hybrid class, will be enough. Several schools have indicated they will create new in-person courses or adapt existing courses to provide a face-to-face component for international students. Others have announced their faculty will provide one-on-one independent study for international students as needed for them to maintain their status. Some faculty members have taken to social media to let international students know they are willing to offer them independent study, although others have cautioned against offering that as an option until there is clear guidance from ICE on whether independent study will count as sufficient in-person education under the new directive. Students at some schools started a spreadsheet to help non-international students swap slots in face-to-face classes with their international classmates.

For schools that are planning to offer hybrid instruction, they will need to work with international students individually to make sure they have a qualifying in-person course. One way to do this at schools where students have not completed registration for fall classes is to offer international students priority registration for spaces in in-person courses. This and other support for international students will be critical, and it is already underway: Some universities in this group have informed their international students they will reach out directly to them to develop a plan, and others have offered them one-on-one immigration advising to help them navigate the new policy.

Engage in advocacy to encourage ICE to reverse this policy. The best course of action – in terms of minimizing the economic, health, and educational costs that will result from ICE’s directive – would simply be for ICE to reverse this policy. At the same time that universities are working to support their international students, they can also press ICE to change course. Some universities have said they are starting this advocacy directly and through higher education associations. As part of this work, universities can also enlist allies to advocate for reversing the policy to expand the voices raising concerns about the negative impact of the new directive not just on universities but on a diverse array of communities and the economy more broadly. Some allies have already stepped up. The U.S. Chamber of Commerce, for instance, has already declared that it will consider pursuing legislative (and legal options) if the administration does not reverse the policy.

Pursue litigation to halt the policy. Harvard and MIT, which had announced plans to offer most of their instruction online for the fall semester, filed the first lawsuit challenging the new ICE policy only a few short days after it was issued. Their lawsuit claims that “increasing the number of in-person sessions beyond those currently planned would increase the risk to faculty, staff, and students of contracting COVID-19.” It asserts that ICE’s action violates the rules of the Administrative Procedure Act – a claim that has proven successful in challenging other immigration policies of the current administration, including the effort to rescind the Deferred Action for Childhood Arrivals (DACA) program. This lawsuit seeks a temporary restraining order to prevent the enforcement of the policy while the litigation is ongoing. Other universities are supporting this challenge. Additional lawsuits are expected in the coming days. However, even if just one of these lawsuits succeed in halting the policy in lower courts, it is a good bet that the administration will seek an emergency stay by the Supreme Court of any injunction.

Universities, students, and their allies may yet succeed in mitigating or invalidating this policy through one or all of these paths. But it is difficult to overstate the impact of ICE’s new directive on international students, on universities and their communities, and on businesses and the economy if it remains in effect— yet another cruel attempt by the current administration to target immigrants and close off America from the world.