The 'Misguided' War Against the Administrative State

      Federalist Society members were in high spirits at their annual convention in Washington this month, genuinely giddy after a keynote speech by the self-identified "committed originalist and textualist" justice Neil Gorscuh they helped install on the Supreme Court. Thirty-five years after its founding, the conservative-libertarian assemblage of law students, lawyers, and judges was also celebrating its quasi-official role in vetting nominees for President Trump for federal judgeships and its increased influence among Republican lawmakers on Capitol Hill.
      Thus energized, the society decided to use three days of programs to renew and reinvigorate the war that the group's political and intellectual forbears fought and lost to the New Deal 80 years ago. Speaker after speaker echoed the theme that the federal appeals court judge Edith Jones struck in introducing the opening panel [Nov. 16] by attacking the so-called administrative state as a "nonelected, nonaccountable branch of government."
      To its credit, the Federalist Society typically includes one liberal to speak for the opposing side in its four-person panels. That role fell in the opening panel to Gilliam Metzger, a professor at Columbia Law School, who had just published a widely noted article in the Harvard Law Review warning that the administrative state was "under siege." The attacks, she told the audience, are "misguided."
      The judicial underpinnings of federal regulatory agencies are well established, but completely illegitimate, to hear Federalist Society members tell it. Independent agencies such as the Federal Trade Commission (FTC), founded in 1914, can be created by Congress to combine three kinds of power: rulemaking, enforcement, and adjudication. And the members of those multimember commissions can be given fixed terms, subject to removal by the president only for cause.
      In a paradoxical footnote, that principle comes from the Supreme Court's decision in a case called Humphrey's Executor that rebuffed President Franklin D. Roosevelt's decision to fire FTC commissioner William Humphrey for not supporting FDR's policies. The 1936 ruling was unanimous, but former federal appeals court judge Michael McConnell was warmly received when he called for overruling it.
      Under a more recent pair of cases, all federal agencies, including those in the executive branch such as the Environmental Protection Agency (EPA), get the benefit of a generous amount of judicial deference for their rulemaking powers. The Supreme Court's unanimous decision in Chevron U.S.A. v. Natural Resources Defense Council (1984) held —  in upholding a deregulatory move by the EPA —   that agencies are entitled to deference if they adopt "a permissible construction" of a statute that vests discretion in the agency.
      A decade later, the Court held —  in another unanimous opinion, this one written by Justice Antonin Scalia —  that federal agencies are also entitled to deference when they interpret their own regulations. Before his death, Scalia publicly voiced doubts about his opinion in Auer v. Robbins (1997). Those doubts have been picked up by, among others, Scalia's colleague, Clarence Thomas, and his successor, Gorsuch.
      The legal doctrines are far removed from the real political issue: efforts by business interests and committed small-government conservatives to undo regulations designed to protect, among other things, the environment, public health, consumers, workers, and investors. Gorsuch mocked Metzger's article in his black-tie dinner speech and warned against what he saw as the risk under the administrative state of "moving from liberty to tyranny."
      Metzger labored, to no apparent effect, to rebut the depiction of federal bureaucracies as either undemocratic or tyrannical. The administrative state "performs some very important constitutional functions," she explained. In her article — the Foreword for the  Harvard Law Review's annual Supreme Court edition — she wrote more forcefully of what she called "the administrative state's essential place in our constitutional order."
      Administrative agencies are far from unaccountable, Metzger argued in her article." Anti-administrativists fail to recognize that the key administrative state features that they condemn, such as bureaucracy with its internal oversight mechanisms and expert civil service, are essential for the accountable, constrained, and effective exercise of executive power," she wrote.
      In place of the accountability built into bureaucratic structures, the Federalists want to strengthen the power of the president and/or Congress to override regulatory decisions. President Trump's chief spear carrier in the so-called deconstruction of the administrative state drew raucous cheers when she described the administration's policies. Neomi Rao, administrator of the White House's Office of Regulatory and Information Affaires (ORIA), promised that the administration will do better than Trump's executive order to eliminate two regulations for every new regulation put in place.
      Sen. Tom Cotton, an Arkansas Republican, was similarly well received when he noted that Congress has used the previously obscure Congressional Review Act to repeal more than a dozen so-called "midnight regulations" that the Obama administration adopted in its final months. The law had been invoked only once before.
      Presidential or congressional overrides are poor substitutes for administrative accountability, however, according to dissenting speakers. Lisa Heinzerling, an environmental law expert at Georgetown Law School, cited President Obama's decision to overturn an EPA decision on ozone as an example. Obama provided little by way of justification for his action, she said. In like vein, Peter Strauss, a professor at Ohio State's Columbus School of Law, said that Congress had failed to justify its recent action to override a regulation issued by the Consumer Financial Protection Bureau (CFPB) to prevent banks and other financial institutions from using mandatory arbitration clauses to block lawsuits by disgruntled customers.
      Metzger concedes that the anti-administarativists are gaining traction with their arguments — not just in the Trump administration and in Congress but also at the Supreme Court. She counts Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. as sympathetic to the critique, along with the committed critics Thomas and Gorsuch. Are we one justice away from a fundamental transformation of administrative law? Metzger thinks not, but Federalist Society members seem to think their goals within reach.

Impeaching Trump: Here's the Beef

      Donald Trump marked a historic milestone this week when he became the first president to be confronted with a resolution calling for his impeachment and removal from office within his first year in the White House.
      The 25-page resolution  introduced on Wednesday [Nov. 15] by six Democratic members of the House of Representatives lays out five articles of impeachment that recite familiar stories relying for the most part on undisputed facts. Trump is charged with obstructing justice — most specifically, by firing FBI director James Comey to try to thwart the Russia investigation. He is also accused of violating the Constitution's foreign and domestic emoluments clauses and with undermining the independence of the judiciary and the freedom of the press.
      As to each of the counts, the resolution lays out a strong case that the president, quoting now, "has undermined the integrity of his office, brought disrepute on the Presidency, and betrayed his trust as President in a manner subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States." With the issues so familiar, the resolution's sponsors rightly view impeachment as the only means for ending what the lead sponsor, Tennessee's Steve Cohen, in a press release calls Trump's "reckless and harmful behavior" in office.
      By historical standards, the resolution is as dense and detailed as the only successful impeachment resolution to date: the three articles adopted with bipartisan support by the House Judiciary Committee on July 27, 1974. The committee's action, combined with the Supreme Court's decision in the Watergate tapes case, forced Richard M. Nixon to resign the presidency within a matter of days to avoid all-but-certain conviction and removal.
      By contrast, the Trump impeachment resolution is far more detailed than the impeachment measures brought, unsuccessfully, against Andrew Johnson in 1868 and Bill Clinton in 1998. The Senate fell one vote short of the two-thirds majority needed to convict Johnson on charges of violating the Tenure in Office Act by removing Edwin Stanton as secretary of war. The Senate fell short of a simple majority on the two counts against Clinton: 45-55 on perjury for lying to a federal grand jury and 50-50 on the related obstruction of justice count.
      Impeachment is a powerful weapon, so it is probably good that it has been wielded against the president infrequently and successfully only in Nixon's case. History has long approved of Johnson's acquittal: his removal for firing a member of his own cabinet would have gutted the president's authority over the executive branch. Decades from now, history is also likely to judge that the Clinton impeachment was more a partisan power grab than a principled effort to punish presidential misconduct.
      Six other presidents have been the targets of impeachment resolutions, according to a detailed report by the Congressional Research Service. John Tyler became the first impeachment target, two years into his presidency in 1843, for exercising the president's constitutional power to veto a bill passed by Congress; the House rejected the resolution. None of the others was brought to the House floor.
      Three presidents faced possible impeachment on their way out of the White House. Grover Cleveland faced a miscellany of politically charged accusations in an unsuccessful resolution introduced in the final year of his second term. Herbert Hoover similarly faced a mishmash of politically motivated accusations in December 1932 after he had been defeated for re-election. In a more recent instance, Harry Truman faced impeachment in his final year in office for seizing the shut down steel mills to keep them operating during the Korean War.
      Two presidents, Ronald Reagan and George H.W. Bush, were accused in unsuccessful impeachment resolutions of exceeding presidential powers by launching overseas wars: Reagan's invasion of Grenada in 1983 and Bush's Desert Storm war in Kuwait in 1991. Reagan also survived a second-term impeachment attempt over the Iran-contra affair.
      Those efforts, just like the one against Trump, arose from partisan disagreements whatever their underlying substance. In Trump's case, the accusations stand of their own weight despite their partisan motivations; the president and his supporters have little by way of defense except to rely on immunity supposedly created by winning election.
      Trump himself admitted, belatedly, that he fired Comey to thwart the Russia investigation. That may not be obstruction for criminal law purposes, but qualifies in an impeachment trial. He has clearly violated the Foreign Emoluments Clause from the patronage of foreign governments at Trump properties, including the Trump Hotel in Washington, and from regulatory benefits extended to Trump businesses in many countries — China, most recently. As for the Domestic Emoluments Clause, the White House itself is paying Trump properties for all the days that the president has spent at Mar-a-Lago, among others.
      Trump is accused of undermining the independence of the judiciary and the rule of law by his race-based campaign-time criticism of the federal judge overseeing the civil suit against Trump University, his White House criticism of the judges handling the Muslim travel ban cases, and his pardoning of Arizona's contempt-of-court sheriff Joe Arpaio.
      As for freedom of the press, Trump commended a literal "beat the press" policy to his supporters during the campaign and has kept up his "Fake News" drumbeat in the White House. The specifics cited make clear that Trump's efforts to undermine the press go far beyond the ordinary, to-be-expected adversary relationship between the White House and the press.

Impeaching Trump? Nailing Jello to the Wall

      President Trump has quite possibly committed what the Framers of the Constitution would have considered an impeachable offense. That is the takeaway from an hour-long, ostensibly nonpartisan presentation by a leading expert on impeachment at the National Constitution Center last week [Nov. 6].
      Cass Sunstein, a Harvard Law School professor and author of the just published title Impeachment: A Citizen's Guide (Harvard University Press), pointed most specifically to the investigation by special counsel Robert Mueller of the Trump campaign's possible collaboration with Russia during the 2016 campaign. In Sunstein's recounting, the Framers worried at the Constitutional Convention about the possibility that the president might attain office through some corrupt means.
      The possibility of enlisting a foreign adversary to gain the White House? "That's worse," Sunstein told his interviewer, Jeffrey Rosen, the center's president and a law professor at George Washington University. To avoid the partisan pitfall, Sunstein, a former Obama administration official, elaborated not by referring to Trump but by re-hypothesizing a collaboration between a Democratic candidate and a different foreign adversary, China.
      With each passing day, it becomes more evident that the Trump campaign behaved as though it had been corrupted by Russian agents, but the evidence of active "collusion" is fragmentary and disputed. Son-in-law Jared Kushner's meeting in June 2016 with a Russian lawyer who promised dirt on Trump's Democratic opponent Hillary Clinton would seem to be a smoking gun but for Kushner's insistence that nothing came of it.
      Trump himself has repeatedly denied any collusion with the Russians and belittled the accusations and the accusers. He went even further over the lines of normal respectability this weekend [Nov. 11] by telling reporters after a meeting with the Russian president Vladimir Putin that he credits Putin's denials of meddling over the formal assessment to the contrary by the U.S. intelligence community. Adding gratuitous insult to traitorous injury, he dismissed the former CIA director John Brennan, the former director of national intelligence James Clapper, and fired FBI director James Comey as "political hacks."
      Trump's own CIA director, Michael Pompeo, responded with a statement reaffirming his belief in the January 2017 assessment. "The intelligence assessment with regard to Russian election meddling has not changed," Pompeo said blandly. Sen. Ben Cardin, a Maryland Democrat and member of the Senate Intelligence Committee, called Trump's statements "outrageous." From a different perspective, Bill Kristol, a "Never Trump" conservative columnist, called Trump's statements an effort to "help lay the groundwork for ending" the Russia investigation.
      The focus on the Russia investigation is understandable, but it partakes to some extent of what Sunstein described as the error in treating impeachment in legal instead of political terms. The Framers adopted the phrasing "high crimes and misdemeanors" as a term well understood in the 18th century to denote misconduct in public office. At the Constitutional Convention, James Madison called impeachment a remedy "against the incapacity, negligence, or perfidy of the chief Magistrate." In Federalist No. 65, Alexander Hamilton called impeachment a "political" action to be taken against an official for "the abuse or violation of some public trust."
      Thus, as Sunstein put it, some presidential crimes may not be impeachable offenses —  for example, jaywalking or tax fraud —  and some impeachable offenses may not be crimes at all. Trump's firing of Comey might have been "fine" in a general context, Sunstein said, but arguably an impeachable offense if the aim was to "prevent an investigation of horrible things." That would be true, Sunstein added. even if it did not amount to obstruction of justice. "I wouldn't make a fetish of the term," he said.
      In like vein, several legal commentators have cautioned against overemphasizing "collusion" as the object of the Russia investigation — a term, they note, with no special legal significance. "There is a range of different kinds of collusion," says Ilya Somin, a constitutional law professor at George Mason University's Antonin Scalia Law School, "and a range of degrees of collusion." In any event, Somin adds, "we simply don't have enough evidence yet to know."
      The liberal billionaire Ton Steyer, who claims to have 2 million signatures for his petition to impeach Trump, has a scatter-shot bill of particulars against Trump that goes beyond the Russia issue. He accuses Trump of exploiting the presidency "for his personal gain" and treating the government "like a family enterprise." Those accusations seem to channel Madison and Hamilton, but others go somewhat afield into policy disagreements on issues ranging from immigration and health care to climate change and North Korea. 
      The conventional wisdom, ever since John F. Kennedy celebrated President Andrew Johnson's acquittal in his book Profiles in Courage, has argued against Congress impeaching the president over policy disagreements. On health care, however, Steyer aptly calls Trump's "sabotage" of the Affordable Care Act a failure to execute the law. Articles of impeachment could cite Trump's careless attitude toward the Take Care Clause in other contexts. Steyer cites Trump's "conduct during Charlottesville." Somin points to Trump's campaign and post-election "encouragement of violence" and, more generally, his "breach of constitutional norms."
      The case for Trump's impeachment, in short, is substantial even if a political impossibility as long as Republicans cling to their historically unpopular president. The case for impeaching Trump for "high crimes and misdemeanors" is long and strong, but is akin to nailing Jello to a wall. There is a lot there, but it's very hard to make it stick.
      More on the topic next week.

From Death Row, a Plea on 'Ineffective Assistance'

      Carlos Ayestas has spent almost 20 years on death row in Texas, sentenced by a jury that heard none of the evidence that might have spared him the death penalty. Ayestas was convicted along with two others of strangling an elderly woman during a home invasion in a cut-and-dried, two-day guilt phase trial. The subsequent capital sentencing hearing — required under Supreme Court precedents — was even shorter, woefully deficient even by Texas's low standards.
      Two decades later, Ayestas is before the U.S. Supreme Court, seeking funds that his current lawyers say are needed to show his previous attorneys violated his Sixth Amendment rights by providing "ineffective assistance" at trial and in a subsequent state habeas corpus proceeding. Those lawyers all but completely ignored evidence of possible mental illness and head traumas suffered by the Honduran immigrant as a youngster — information that jurors might have found to be "mitigating circumstances" weighing against imposition of a death sentence.
      The arguments in Ayestas v. Davis last week [Oct. 30] illustrate the importance of the court's continuing role in policing what the late justice Harry A. Blackmun famously referred to near the end of his career as "the machinery of death." The Roberts Court seems unlikely to declare capital punishment flatly unconstitutional under the Eighth Amendment and has repeatedly refused to find the current three-drug lethal injection protocol unconstitutionally "cruel or unusual." Year after year, however, the court throws out death sentences or capital murder convictions based on narrower constitutional violations.
      Many of those cases come from Texas, far and away the leading state in executions since the Supreme Court's decision in 1976 allowing the resumption of capital punishment. Just last term, the court told the state to update its definition of intellectual disability used to determine eligibility for the death penalty (Moore v. Texas) and threw out a black inmate's death sentence because of sentencing-hearing testimony linking future dangerousness to race (Buck v. Davis).
      Ayestas's case presents an even starker illustration of the low standards that the Lone Star State sets for justice in capital cases. To appreciate the extent of the injustice to Ayestas, death penalty cases need to be understood today as focusing less on guilt or innocence than on aggravating or mitigating circumstances as presented by opposing lawyers in the post-verdict sentencing hearing. A properly staffed capital defense team today includes not just lawyers and a Paul Drake-type investigator, but also a "mitigation specialist" with a combination of investigative and interviewing skills needed to ferret out details of a defendant's social history to use as mitigating circumstances in the capital sentencing phase.
      Ayestas's two defense lawyers learned just before his 1997 trial that the twenty-something immigrant had suffered repeated head traumas as a youngster and presented some symptoms of mental illness. In their two-minute presentation of mitigating evidence, however, they introduced nothing more than three letters from a teacher at the Harris County jail that Ayestas was a "serious and attentive" student in her English as a second language class and was making good progress.
      With his conviction and sentence affirmed on appeal, Ayestas was given a new lawyer to challenge the conviction through a state habeas corpus proceeding. That lawyer also failed to investigate Ayestas's medical and mental health issues, much less challenge the trial lawyers as "ineffective" for having failed to do so. He argued only that Ayestas's trial lawyers were deficient for failing to get his family from Honduras to the trial to testify in his behalf. State courts again upheld the conviction and sentence.
      A decade later, a new legal team filed a federal habeas corpus petition for Ayestas that, for the first time, claimed ineffective assistance of counsel based on the failure to investigate the mental illness and medical issues. By this time, a prison psychiatrist had also formally diagnosed Ayestas with schizophrenia — a condition likely to have been diagnosable earlier. The federal district court judge who heard the case, however, dismissed Ayestas's petition as procedurally defaulted because he had not raised the ineffective assistance claim earlier.
      A pair of Supreme Court decisions effectively required the district court to reconsider the issue, but the judge again rebuffed Ayestas's plea. Ayestas also asked for funds, as provided by a federal law, to investigate and present the claim. The Criminal Justice Act provision guarantees death row inmates the funds "reasonably necessary" to present post-conviction challenges in federal habeas corpus proceedings.
      The Fifth U.S. Circuit Court of Appeals, the federal court with jurisdiction over Texas, has adopted a unique interpretation of that provision to require funds for federal habeas corpus cases only if the inmate demonstrates "a substantial need" for the money. No other federal circuit has put this gloss on the seemingly straightforward phrasing from the statute itself.
      In Ayestas's case, a panel of three Republican-appointed judges upheld the judge's decision. "The district court did not abuse its discretion when it declined to authorize a mitigation specialist for Ayestas before it determined the viability of Ayestas’s claim," the court wrote in an unsigned opinion.
      At the Supreme Court, University of Maryland law professor Lee Kovarsky argued in Ayestas's behalf that the Fifth Circuit's rule, in effect, allowed the court improperly to "guess" what a properly funded investigation would show. Liberal justices evidently sympathized, while conservatives fretted about issues of jurisdiction and judicial administration. Troublingly for Ayestas's chances, Justice Anthony M. Kennedy sat silently and expressionlessly throughout the hour. "Without Kennedy asking any questions," Kovarsky remarked afterward, "it's really hard to know where you stand."