The despot?

We should all be talking more about this. On a daily basis now – the president’s comments continues to challenge the separation of powers doctrine, so important in our constitution. If a president seizes power completely he basically becomes the king – the DESPOT. This is what the American Revolution was fought over – to resist the King of England. Are you now going to reinstate a king?

The president has attacked the media by calling them “dishonest” and calling them “the opposition party.” The media is supposed to be the watchdog of the president and therefore our democracy. He has gone after the intelligence agencies, calling them “disgraceful” and accusing them of leaking information. He has also attacked the judiciary. He attacked Judge Garland’s heritage. Now he is attacking the decision of Judge Robart over the decision to stay the immigration ban.

The aim is the same in all cases – to delegitimize all three of these institutions. There is no question that both the media and the intelligence agencies have faced credibility problems. But the answer is not to destroy them.

This could be heading in a very bad direction when we consider that it has happened before. After the court’s Brown v. Board of Education decision the National Guard had to be called in to implement the court’s ruling in Arkansas.

What would happen if the president doesn’t like another decision of the federal judiciary or the Supreme Court? Would he undermine the decision to the point that our federal agency heads and federal officers would refuse to implement the court order? Who would call in the National Guard then?

In a latest update, Senate Majority Leader Mitch McConnell THANKFULLY today stated in “State of the Union” Sunday: “I mean, the courts are going to decide whether the executive order the President issued is valid or not, and we all follow court orders.”
I’m glad to see that at least Congress believes in the separation of powers.

These comments are based on the comments raised by Dean Obeidallah in the article “Donald Trump’s most bone-chilling tweet” (February 4, 2017).



Who will our next Supreme Court Justice be?

President Trump said that he will make his choice next Thursday. Judges William Pryor and Thomas Hardiman are supposed to be on a very short list of contenders. But one of the strongest contenders is Judge Neil Gorsuch who is a conservative and a favorite with the Federalist Society and the Heritage Foundation. His views on religious liberty are the key, as expected in this new administration. He has sided with corporations over theontraceptive mandate being in violation of religious beliefs. Does everyone recall the Hobby Lobby case?

But another important area where his ideas are consequential is regarding the power held by administrative agencies. He has challenged the idea that courts should defer to administrative agencies in their interpretation of the law. This is in line with Justice Clarence Thomas’s views. This also makes sense when we consider the direction the new administration is heading with its choice of nominees to head the various agencies and the recent orders to control what agencies are releasing to the public on their webpages. Stephen I. Vladeck, CNN Supreme Court contributor and professor of law at the University of Texas School of Law states: “Judge Gorsuch has been a stern critic of a fixture of the Supreme Court’s administrative law jurisprudence — the idea that, where a federal agency is enforcing an ambiguous statute, courts should defer to how the agency understands the statute even if the courts read it differently.” “If he were to form part of a majority to scale back that principle, it would be a major sea change in the relationship between the executive branch and the courts, and one that would likely impose significant new constraints on the scope of federal regulatory authority on all topics — from immigration and criminal law enforcement to environmental protection, consumer product safety, and drug regulation,” Dan Goldberg of the Alliance for Justice also states: “His position on this is more extreme than Justice Scalia,” “It would be hard to overstate the damage it would cause this nation and the American people.”

Judge Gorsuch is also considered to have strong opinions on women’s rights to access reproductive health care and the rights of workers and consumers. Adam Feldman whose keeps a blog called Empirical Scotus says that Gorsuch’s ideas resonate with President Trump in the areas of abortion, gun rights, the ACA, and judicial philosophy, including his use of originalist principles.

We have already seen Trump’s lawyers using originalism as a defense in the recent white paper on the president’s conflicts of interests under the Foreign Emoluments Clause. Gorsuch’s philosophy is in line with that of the late Justice Scalia. In his own words, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”


Shock Doctrine American style

I talked with a friend tonight and I’m sure he won’t mind me borrowing the essence of what he said because it’s something I’ve been feeling for a long time now. I would say a feeling going back to when we had the primary elections – a feeling of not being able to get away from the politics of the country. You don’t even have to be a person who seeks out what it going on. It’s just there full throttle in your face (and it’s getting worse every day).

I’m sure some of the things the new administration does will lead us in a better direction, like getting us out of the TPP agreement. But the latest executive orders today about the Keystone XL and Dakota Access Pipelines, and tomorrow an executive order to build a wall on the Mexican border have come as a shock today (at least for me). We also have the concerns regarding the repeal of the Affordable Care Act. And the stance on stopping funding to foreign countries who use abortion as part of their services came yesterday, suggesting a domestic policy shift to take away women’s rights in this area.

The administration is fighting with the media. Websites have been dismantled with information removed about climate change and LGBT. There are other things I’m looking into tonight for the first time – tweet comments about climate change being removed from websites like the Badlands National Park and freezes on the EPA with staff being prevented from speaking out about policy. I guess its part of the 100 day plan to overwhelm the public to the point where we can’t keep up with it anymore and barely know what is going on.

There will also be a new Supreme Court nominee shortly. They need 60 votes to get that passed, so they will need at least 8 votes from the Democratic Party (as per an NPR report a couple of days ago).

I don’t want to be negative but if we start to get to a point where the system and our institutions are manipulated in a way that our Bill of Rights is in name only, then perhaps we are indeed entering the domain of authoritarianism. Many of my associates saw this coming. I just saw Trump versus Clinton and the ousted Sanders. I have no idea how things would have been different under a Clinton administration and we will never know that. The Democratic Party is a much lesser version of what we have at present but I don’t think it would have been the assault that we are experiencing this week. I just hope I’m wrong about all of this and that things settle down. But I’m not confident.

The Foreign Emoluments Clause and Trump’s Business Dealings

The Foreign Emoluments Clause is in the forefront of the nation’s attention with the inauguration of President-elect Trump today. So much so that a white paper has been produced to deal with the issue. The President-elect’s lawyers have focused on three important constitutional arguments to support their conclusions that Trump’s business interests present no conflict under the Clause.

John Mikhail in his blog discusses these arguments:
1. Originalism, in the sense that any reading of a provision of the Constitution should be based on its original interpretation by the Founding Fathers. Any foreign government business at Trump’s hotel or similar enterprizes will not qualify as an emolument based on a lack of historical evidence to support such an interpretation.
2. An emolument is interpreted as any compensation/payment or privilege or benefit with respect to the holding of office. But it doesn’t include all payments from all sources. In this regard services to guests at a hotel has nothing to do with the performance or discharge of duties associated with an office.
3. An emolument does not include ordinary “fair-market-value transactions”.

Mikhail goes on to point out that none of the above arguments are substantiated by any leading legal opinions or sources. He also suggests that there is actually evidence to the contrary and that the original meaning of emoluments extends to payments or benefits beyond the duties of office. Mikhail also provides many examples where emoluments are associated with ordinary business dealings. Trump’s businesses could therefore be seen to violate the Clause.

Mikhail concludes that much deeper analysis of the relevant sources of authority would need to be undertaken to understand how the Foreign Emoluments Clause was interpreted originally. But the sources provided in the white paper lend relevance to the suggestion that the arguments presented by Trump’s lawyers fails to pass muster.

Also, this focus on originalism in the lawyers’ arguments side steps the other side of the coin – that opinion is deeply divided about interpreting the Constitution this way today.



The guessing game – What will America’s new health care look like?

With the repeal of the Affordable Care Act (ACA) now in motion there is much speculation about what its replacement will look like.

President-elect Trump has recently promised that every American will be covered by health insurance which suggests he has a replacement plan in mind.  But as yet there are no details.

David Orentlicher, a professor of law at the Robert H. McKinney School of Law in Indiana speculates that Trump may be trying to follow the example of Vice-President-elect Pence in his position as Governor of Indiana.  At the time Pence tried to find some middle ground by combining conservative ideals with the provision of health insurance for everybody. At the time Pence signed onto the ACA’s Medicaid expansion, but added a health savings account feature and other parts that were more in line with the conservative model of individual responsibility.

Orentlicher uses an example that is in current use to demonstrate how this middle ground approach works.  In the case of Medicare Advantage private health coverage can be selected rather than traditional Medicare.  This model has the best of both worlds feel to it (at least from the conservative side of the fence) where everyone is covered but conservative principles are retained in its operation.

It will be interesting to see the unveiling of the details of the replacement plan in the coming months.

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What place would executive orders have in the repeal of the Affordable Care Act (ACA)?

The repeal of the ACA is already underway using the budget reconciliation process.  But it could amount to a matter of weeks before it takes effect.  Because of the delay, the Vice-President-elect has made comments recently to suggest the new administration will use executive orders to get the ball rolling once they assume office.

Timothy Jost, Emeritus Professor at the Washington and Lee University School of Law, explores whether such executive orders could be used to help the repeal process without congressional action.  He concludes that executive orders, though legally binding when based on a statute or the Constitution, cannot be used to repeal or amend a statute and do not carry any authority if they conflict with the law.

The ACA came into effect though the use of the regulatory process.  Because of this, certain requirements needed to be followed before any regulations became law.  Jost concludes the new administration will not have the power to repeal or amend any regulations already in effect unless a new round of rulemaking procedures are implemented which explain why the revocations or amendments are needed.

Additionally, the ACA for the most part has been implemented through guidance.  This is a process that also allows for the making of amendments.  But the process cannot be used to amend rules or statutes.

According to Jost some possibilities in the days ahead for the new administration include:

  1. Reducing resources to agencies that operate ACA programs which would undermine their ability to operate effectively;
  2. Reduced enforcement of some ACA requirements, such as individual and employer mandates;
  3. Decision making with regard to State Medicaid or 1332 waiver applications;
  4. Whether to continue litigation  of the lower court decision House v. Burwell which blocks insurers from receiving reimbursement for cost-sharing reductions they are required to offer low-income enrolees;
  5. Responding to the many cases brought by religious organizations over contraceptive coverage; and
  6. Responding to regulatory requirements that stops insurers rejecting outright cover for gender change services.

The big question is whether the new administration will overstep the mark with regard to substantive and procedural requirements of the ACA.  This could lead to an increase in litigation by those most effected.


How independent federal agencies can resist attempts to quash them …..

This is a continuation of a discussion based on my summary of an article posted on The Hill along with words of wisdom from law professor and Bloomberg columnist, Cass R. Sunstein

Partisan pressure from Congress for the President-elect to discharge the Consumer Financial Protection Bureau (CFPB) Director Richard Cordray would be wrong in both law and ethics.  Here is a summary of why this action would be wrong under the law.

First, a little background about agencies. Federal agencies are structured in a way that some are set up at the pleasure of the President, while others are set up independently.  A Supreme Court decision in 1935 also gave Congress the power to create independent agencies. The CFPB is an independent agency.  

As a result, any action by the President to discharge the director of the CFPB would be acting beyond his constitutional authority.  Director Cordray could seek a judgment from the court and win.

However, there has already been an attempt to undermine the CFPB and its director, focusing on the fact of it being headed by a single person  instead of the more typical multi-member panel, as well as its importance in the economy and the threat this is seen to present.  A decision by a panel of judges of the U.S. Court of Appeals for the District of Columbia recently ruled against the CFPB.  The decision is under review by the full court and expected to be reversed. So at this point in time the President-elect is bound by the current law.

The other argument that could be used under the current law to try to remove Director Cordray is for good cause.  Good cause entails something resembling acts of “inefficiency, neglect of office, or malfeasance of office”. As discussed in my previous summary this would be outrageous. The court of first instance has already found Director Cordray to be “a man of substantial accomplishment and of longstanding and dedicated devotion to public service and the public good.”

Sunstein takes the discussion further by mentioning other ways the new administration could undermine the CFPB and its director. This could involve challenging the agency’s powers in court by having it make a ruling that the Constitution does not allow Congress to create independent agencies or by having the Director communicate with the president directly before attempting to implement any extensive regulations.

It will be interesting to see how this all plays out in the coming months.


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