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).

Using Emergency Powers to Fight Climate Change

This article was first posted in Legal Planet.

If Trump can stretch emergency powers, maybe they can be used for other purposes too. Could a future President invoke emergency powers against climate change?

Republicans are apparently worried that if Trump could use emergency powers by declaring border security a national emergency, the next president could do the same thing for climate change. There’s no doubt that this would be far more legitimate than Trump’s wall effort.  Border crossings are much lower than they were ten years ago; he has said in the recent past that his prior efforts have vastly improved border security. In contrast, the Pentagon has classified climate change as a threat to national security, and Congress under Republican control has even endorsed this view. Furthermore, scientists have made it clear that we have a limited time to head-off a disastrous outcome.

With that in mind, I did some quick research to see what powers a President might have to take emergency action against climate change. This doesn’t mean I think it’s a good idea, either for Trump or for future President X. But if the courts uphold Trump’s use of emergency powers, some might well think that turnabout would be fair play.One immediate possibility would be to use the same power that Trump is considering in order to divert military construction funds to other uses – in this case, perhaps building wind or solar farms or new transmission lines. But what else could President X do?The Brennan Center has compiled a helpful list of almost 150 statutes giving the President special powers during emergencies. The list doesn’t map the outer perimeter of presidential powers – there are other laws that give Presidents powers to take action on the basis of national security, and the President also has some ill-defined, though not unlimited, powers to take action without explicit congressional authorization. But the list provides a good start.   Since this issue has come up so recently, I can’t claim to have researched the statutes on the list in any depth, but my “prospecting” effort was enough to identify some promising areas for further exploration.Here are some of the possibilities:

  • Oil leases are required to have clauses allowing them to be suspended during national emergencies. (43 USC 1341) If climate change is a national emergency caused by fossil fuels, then suspension seems like a logical response.
  • The President has emergency powers to respond to industrial shortfalls in national emergencies. (50 USC 4533). This could be used to support expansion of battery or electrical vehicle production. Another provision allows the President to extend loan guarantees to critical industries during national emergencies. (50 USC 4531). This could be used to support renewable energy more generally.
  • The Secretary of Transportation has broad power to “coordinate transportation” during national emergencies. (49 U.S.C 114). This might allow various restrictions on automobile and truck use to decrease emissions of greenhouse gases.
  • The President may invoke the International Emergency Economic Powers Act to deal with “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.” (50 USC 1701-1707).That description certainly applies to climate change. According to the Brennan Center, this Act “confers broad authority to regulate financial and other commercial transactions involving designated entities, including the power to impose sanctions on individuals and countries.” Conceivably, these powers could be deployed against companies or countries trafficking in fossil fuels.

There may well be others on the Brennan Center list that I missed.  Moreover, as I said above, the President has other powers relating to national security, statutory and otherwise, that aren’t keyed to a declaration of national emergency – for instance, the kinds of tariffs Trump has imposed on foreign goods (say those relating to oil and gas drilling, or to oil imports.)

You might well respond that using these various powers to deal with climate change is stretching them far beyond any reasonable understanding of congressional intent. But if the courts upholds Trump’s action, that will be a sign that they’re not willing to apply any meaningful oversight to presidential actions.

Granting the President broad emergency powers threatens to damage our system of checks and balances. Their use should be reserved for cases where a situation is unfolding too quickly or unpredictably to allow a legislative response. But if Trump does end up using emergency powers to build his wall, without congressional or judicial check, we may find ourselves in a situation where pretty much anything goes. If so, it may be increasingly hard to argue that one side of the political divide should unilaterally disarm.

Inside Private Prisons: New Book Examines the Industry Around Mass Incarceration

By the end of 1980, the nation held what was then a record total of 329,122 people behind bars. Twenty-eight states and the District of Columbia were under court orders to reduce overcrowding, while 16 states reported a backlog of sentenced prisoners merely waiting in local jails for space in state prisons. The Justice Department noted that since 1969, the number of prisoners held in the United States had increased by 61 percent.

Today’s startling numbers – 1.51 million people in state and federal prisons – would have seemed unbelievable in 1980.

In the early 1980s, state policymakers faced a choice: to either reduce prison populations or build additional, expensive facilities. It turned out that taxpayers were unwilling to foot the bill to pay for more prisons, and legislators would lose reelection if they appeared soft on crime. As Donna Selman and Paul Leighton wrote in their 2010 book Punishment for Sale, any “discussion of alternatives to incarceration was the kiss of death.”

Enter a group of shrewd entrepreneurs who would become the main players in the privatization of American prisons. The biggest players in the game in the early 1980s – and those poised to notice the tremendous financial potential of America’s penchant for metal bars – were the founders of Corrections Corporation of America. CCA was formed in 1983 by Thomas Beasley, formerly head of the Republican Party of Tennessee; Robert Crants, a businessman; and T. Don Hutto, who served as the president of the American Correctional Association and as the director of corrections in Virginia and Arkansas. No stranger to profit motives, Hutto, as director of corrections in Arkansas in 1978, was found by the US Supreme Court to have “evidently tried to operate their prisons at a profit” as incarcerated people were ordered to work on prison farms ten hours a day, six days a week, without appropriate clothing and footwear.

In November 1984, CBS’ 60 Minutes profiled CCA as part of a segment on prison privatization. “Just a few years ago, the very idea of prison for profit would have seemed ludicrous,” reporter Morley Safer narrated, “given the escalating costs and problems of running prisons, given that it’s an area of public service that only brings blame and rarely praise.” Beasley, then CCA president, referred to prisons as a “growth industry.” Beasley told Safer, “the prison population in this country has never gone down but twice—during World War I and World War II—and those operations are self-explanatory, I think.”

In acknowledgement of the profit opportunity the next few decades would bring, CCA’s 1994 annual report to shareholders said, “There are powerful market forces driving our industry, and its potential has barely been touched.” Today about 9 percent of those behind bars in 28 states and in federal prisons – more than 128,000 people – are in prisons run by the private sector. More than half of all private prison beds are owned by CoreCivic, the new name for CCA.

After more than thirty years of intense debate, my book Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration (Columbia University Press) explores an industry that raises profound questions about state responsibility, economic development, morality, and the nature of punishment. What do private prisons mean for Americans? What does it mean for a for-profit company to manage jails and prisons? Is it legal to delegate such a core government duty? Is it moral to do so? Do private prisons save money? And if so, does that validate the industry? Perhaps the most important question is how we got to the point where such an important public policy is delegated to a major corporation.

Private prisons have been criticized for as long as they’ve existed. Some argue they create perverse incentives that drive overcrowding by cutting costs and reducing prisoners’ quality of life. Or that the corporations that run private prisons earn additional revenue when incarcerated individuals serve more of their sentence, encouraging private prison officials to hand out extra infractions that extend their sentences.

Others take issue with the concept of a corporation profiting off the nation’s predilection for incarceration, rewarded for the sheer number of people they can house rather than for successfully rehabilitating and reintegrating prisoners into society. For decades, some legal scholars and policymakers have contended that there are certain state functions that simply shouldn’t be delegated – and that one of those is punishment.

The stories and voices in my book offer a glimpse into the privatization of corrections through the eyes of those who are incarcerated, their families, local government, directors of state departments of corrections, private prison officials, legislators, and criminal justice experts. This story comes at a time in the American narrative when correctional populations have begun, finally, to flatten out. The number of people incarcerated in state and federal prisons decreased by 18,700 (around one percent) from 2015 to 2016 (the most recent period where data is available), yet the U.S. still has a higher percentage of its population behind bars than almost any other country on the planet. And while the overall number has gone down, the number of people in private prisons has increased around two percent over the same period. Today, five states house at least 25 percent of their prison populations in private facilities.

The U.S. and the rest of the world could surely benefit from far less prisons. Too many people and their families suffer needlessly because of the psychological, economic, and physical toll that even the shortest stay behind bars inflicts on people. In fact, my organization, the Brennan Center for Justice at NYU Law, recently issued a report finding that 40 percent of people in state and federal prisons don’t need to be there for public safety reasons.

This book does not endorse the use of private prisons. Given the political reality that private prisons are not going to be abolished soon, it seeks practical ways to improve them. It explores the impact of the for-profit prison industry and asks what the industry’s flaws are, and whether they can be fixed. It seeks to change the incentives of private prisons that reward more incarceration so that they instead reward better conditions of confinement, better rehabilitative opportunities, and ultimately lower recidivism rates.

I recognize that even asking whether the industry can be improved has worrying moral ramifications. If as a matter of principle it is wrong, as some say, to profit from punishment, anything short of abolition – including proposing reforms – risks complicity in an indefensible industry. But in the meantime, tens of thousands of people pass through the doors of private prisons and private immigration detention centers. How the institutions function matters a great deal to people in those facilities and to us, and it is the concern that drives this book’s inquiry. As the broader debate rages, are there ways to improve these institutions, to shift the incentives that shape them?

For-profit prisons and the broader prison-industrial complex that surrounds corrections today are not the engine behind the growth of prison populations. To be sure, eliminating private prisons entirely would only shrink the state prison population by 7 percent. Yet private prisons have become ground zero of the anti-mass incarceration movement, since the closure of these prisons is a concrete step to reducing the number of people behind bars in America.

Private immigration detention centers have also come under increased scrutiny under the Trump administration, which has focused on detaining more undocumented immigrants, as evident by the number of people detained by ICE. ICE data indicates that the agency held an average of more than 42,000 people in custody each day throughout fiscal year 2018, compared to a 2017 high of just over 38,000. GEO Group, another private prison operator, as well as CoreCivic both donated $250,000 to the Trump inaugural committee, and shortly thereafter, the current administration requested more than $1.2 billion in the 2018 federal budget to expand detention capacity to more than 48,000 beds a day, which would likely result in a boon for the private prison corporations. And since private prisons operate under a veil of secrecy by claiming exemption from public records laws that apply to government-operated facilities, federally funded private prisons and immigration detention centers remain a black box.

In late 1984, Congress held hearings to learn more about the private prison industry. At the close of the November hearings, Congressman Robert Kastenmeier thanked the witnesses for testifying and said about the industry: “It is something which in year 2000 we may look at in terms of failure or it may have disappeared from the scene or, indeed, it may have become something very significant in terms of this country.” Eighteen years later, the nation is party to a prison industrial complex that relies on a vast infrastructure of financial incentives that create significant hurdles in dismantling a mass incarceration system.

Lauren-Brooke Eisen is a senior fellow at the Brennan Center for Justice at the N.Y.U. School of Law and author of Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration (Columbia University Press).

Holding the Trump Administration Accountable for Paying Workers during Government Shutdown

*Kalijarvi, Chuzi, Newman & Fitch, P.C. represents the plaintiffs in this litigation.

The federal government has been shut down for more than two weeks, and just last Friday, President Donald Trump declared that he could keep parts of the government shut down for “months or even years.” Federal workers and many contractors are not getting paid during the shutdown, even those who are deemed essential and forced to work. To hold the government accountable for paying workers, the union representing government employees is suing the federal government.

Federal law requires that the government pay employees in full and on time

The ongoing government shutdown is unconscionable, leaving hundreds of thousands of dedicated public servants and contract employees wondering when theywill get their next paychecks.  As the shutdown continues, many people will be forced to forego medical treatment, miss a rent payment, or wonder whether they can afford groceries.

In 1938, Congress found this kind of problem to be unacceptable, and to protect workers, it passed the Fair Labor Standards Act (“FLSA”), which governs minimum wage and overtime compensation.  In 1974, Congress specifically extended the reach of the FLSA to federal employees.  In the following years, courts have unanimously held that the FLSA requires that employees be paid in full and on time.  When an employer schedules a regular payday, it must honor that payday.

To remind employers that they will be responsible if they fail to pay wages on time, workers may recover not only the amount of their unpaid wages, but they also are entitled to “an additional equal amount as liquidated damages” to compensate them for the harm caused when their payments are delayed.  As the government has taken no steps, legally or otherwise, to ensure its employees are timely paid, it is engaging in a bad faith violation of the FLSA, which requires employers, including the government, to pay covered employees at least minimum wage and overtime on the correct payday.

Sadly, this is not new to the government.  Following the October 2013 shutdown, approximately 25,000 essential federal employees, represented by Heidi Burakiewicz, now a partner at Kalijarvi Chuzi Newman and Fitch (“KCNF”), sued the government for failing to pay them on their regularly scheduled pay date.  In July 2014, the U.S. Court of Federal Claims ruled that the government violated the FLSA when it failed to pay on their regularly scheduled payday the employees who worked during the shutdown, and in February 2017, the Court ruled even further that the government was liable for liquidated damages because it did not act in good faith.  The government is currently calculating the damages it will have to pay to those employees.

No structure exists to ensure that federal employees are paid during shutdowns

Despite repeated threatened and actual shutdowns since the one in 2013, the government has failed to implement any kind of structure to ensure that employees who work are properly paid.  Specifically, it has not required that essential federal employees be paid on time during the current shutdown.  That is why the American Federation of Government Employees and KCNF filed a collective action in the Court of Federal Claims against the U.S. Government on December 31, 2018, with named plaintiffs, who work for the Bureau of Prisons.

AFGE lawsuit highlights burden faced by federal prison employees

While the lawsuit applies to all affected federal employees, the problem is highlighted by the named plaintiffs who work at high-security penitentiaries, USP Hazelton and USP Canaan, which are egregiously understaffed.  Employees at these prisons are often required to work large amounts of overtime in some of the most dangerous prisons in the country, where their lives are often at risk.  As one of many examples, on Friday, January 4, 2019, at least eight BOP staff were assaulted and injured at various prisons around the country while trying to protect other inmates and do their jobs.  At a minimum, they deserve to be paid on time.