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05/8/2017

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, Opinion Contributor

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Read More

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05/5/2017

Make the FDA small again

FDA regulation doesn’t just inconvenience Americans – it puts their lives at risk

Back in January, President Donald Trump vowed to cut the Food and Drug Administration’s (FDA) regulations by 75-80 percent, a dramatic policy shift from his predecessor who oversaw regulatory costs skyrocket to more than $100 billion annually. As debate centers on Dr. Scott Gottlieb, the president’s nominee to be the next FDA commissioner, Americans should follow this process closely.

No drug can be marketed in the United States without FDA approval. Over the years, the FDA kept numerous drugs off the market that were approved in other developed countries. According to an article published by the CATO Institute, one doctor estimates that these drugs could have prevented 200,000 American deaths over the last 30 years. One example is pirfenidone, a drug to treat pulmonary fibrosis, which didn’t get approved in the United States until 2014 even though it was marketed in Japan in 2008, Europe in 2011, and Canada in 2012. The FDA was advised by its own advisory committee to approve the drug in 2010, but the agency waited another four years after demanding yet another study on the matter.

Between 2010 and 2014, 150,000 Americans died from idiopathic pulmonary fibrosis, a disease that may have been treatable with this drug. Patients should not be banned from trying experimental medication if they and their doctors believe it is the best choice. The best way to speed up the process is for the FDA to allow the free market to function. The more power we give the FDA, the higher the risk of the agency cracking down on states that allow more freedom to terminally ill patients to make decisions for themselves.

This isn’t a conservative or liberal issue. This is an issue of saving lives and allowing sick Americans the right, with appropriate counseling on the risks, to make informed choices about trying experimental therapies.

The Boston Globe reported a troubling story about a woman who had two sons, both diagnosed with the terminal disease muscular dystrophy. The FDA allowed one of her sons to improve with the help of an experimental new drug, while forcing her to watch idly as her other son’s condition continued to worsen. Her younger son, Max, nine years-old at the time, qualified for a clinical trial of the experimental drug eteplirsen, while her older son, Austin, 12 at the time, did not. After 16 weeks, Max began to improve, which caused her to try to speed the FDA’s approval process for the drug.

The mother submitted an application for Austin again in 2013, and he was finally allowed to participate in a trial beginning in 2014. The FDA, however, didn’t approve the drug for everyone else for another two years.

Americans want safe drugs, but no one wants a bloated bureaucracy at the FDA to decide which terminally ill patients can and cannot benefit from a medicine that seems to be working. Giving this medicine to both sons earlier would have allowed them to improve together, but FDA regulators took away the right of this family and their doctor to make that decision.

There are many more examples. As the CATO article reports, individuals with Alzheimer’s were denied THA, individuals with cardiac problems had to wait for beta-blocker approval, individuals with kidney cancer were denied Interleukin-2, and AIDS patients died while the FDA debated whether AZT was cost-effective.

Multiple surveys by the Competitive Enterprise Institute show that medical professionals disapprove of the FDA’s slow pace in approving promising new drugs. A majority of Orthopedic Surgeons have said FDA’s approval process is too slow and hurts patients. A staggering 70 percent believe the current law should be changed to allow physicians access to unapproved therapies.

This debate is over whether individuals should have autonomy to make informed decisions about medical procedures, or whether an overly cautious federal agency can prevent them from trying what their doctor thinks is best. The solution is to get the federal government out of people’s lives and drastically cut the FDA’s role. Unelected bureaucrats who don’t know the individuals involved or the unique circumstances of the impacted families should not be making life-and-death decisions.

President Trump has signaled he wants to reform and streamline agencies’ regulatory power. In February, the president signed an executive order that requires all federal agencies to create a task force to help “alleviate unnecessary regulatory burdens placed on the American people.” The FDA is a prime target for such reform.

In 2012, Dr. Gottlieb, said that the review culture at the FDA needs to change to encourage innovation. He has also long been supportive of deregulation. Let’s hope he follows suit with what President Trump has promised to do and implements common sense reforms at FDA to give patients more freedom to make decisions for themselves.

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05/4/2017

The Antiquities Act – a Primer

Last week we posted an analysis of the recent Executive Order regarding the  Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) and the letter we sent to Secretary Zinke highlighting concerns we have regarding recent designations of National Monuments. This week we begin a series of blog posts that examine the history of the Antiquities Act, how the Act fits within other frameworks for protecting and using public lands, how the Act has been misused by recent Presidents, and the ramifications of that misuse. We will conclude the series by proposing a variety of approaches for cabining use of the Antiquities Act to its proper sphere.

Today we begin with some background on the Antiquities Act: its purpose, history, and limitations.

The Antiquities Act provides that

The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.[1]

This version of the statute was recodified in 2014, but is nearly identical to the original statutory language, as passed in 1906, in that it applies to objects of historic or scientific interest that are on land owned or controlled by the Federal Government.

The Act provides that the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of the Army publish regulations to carry out the Act.[2] In practice, the National Park Service and the Bureau of Land Management (Department of the Interior), and the United States Forest Service (Department of Agriculture) manage the majority of the monuments.

The Antiquities Act was enacted in 1906 in response to concerns that Native American artifacts were being pillaged from federal lands.[3]  The Act was originally proposed solely to protect objects of historic interest; but, prior to enactment, was expanded to include objects of scientific interest as well.[4]

Urgency in protecting relics against looting and trafficking was the driving force behind the Act.

These relics are priceless when secured by proper scientific methods, and of comparatively little value when scattered about either in museums or private collections without accompanying records. No scientific man is true to the highest ideals of science who does not protest against this outrageous traffic, and it will be a lasting reproach upon our Government if it does not use its power to restrain it.[5]

Although expansion of the Act to include “scenic areas” was considered, Congress ultimately rejected that proposal and limited the scope of national monuments to “the smallest area compatible with the proper care and management of the objects to be protected.”[6] Indeed, concern that vast tracts of land could be appropriated under the Antiquities Act was fiercely debated and resolved via the “smallest area” provision. The following dialogue illustrates the concern over expansive use of the proposed Act:

Mr. STEPHENS of Texas. Will that take this land off the market, or can they still be settled as part of the public domain?

Mr. LACEY. It will take that portion of the reservation out of the market. It is meant to cover the cave dwellers and cliff dwellers.

Mr. STEPHENS of Texas. How much land will be taken off the market in the Western States by the passage of the bill?

Mr. LACEY. Not very much. The bill provides that it shall be the smallest area necesstry [sic] for the care and maintenance of the objects to be preserved.

Mr. STEPHENS of Texas. Would it be anything like the forest-reserve bill, by which seventy or eighty million acres of land in the United States have been tied up?

Mr. LACEY. Certainly not. The object is entirely different. It is to preserve these old objects of special interest and the Indian remains in the pueblos of the Southwest.[7]

President Teddy Roosevelt designated Devils Tower in Wyoming, measuring approximately 1,150 acres, as the first historical monument under the Act.[8] Since its founding, Devils Tower National Monument has been expanded once, by approximately 150 acres, through an Act of Congress.

Photograph care of the NPS. https://www.nps.gov/deto/index.htm

President Roosevelt went on to designate an additional 17 monuments,[9] the largest of which, at roughly 800,000 acres, was the Grand Canyon. That designation was subject to an unsuccessful legal challenge that went to the Supreme Court (Cameron v. United States, 252 U.S. 450 (1920)). The decision in Cameron set the precedent for using the Act to designate large tracts of land as a national monument without reference to a specific historical or scientific object—although, arguably, the Grand Canyon is itself an identifiable object. Congress later incorporated the monument into the Grand Canyon National Park.

From the time of President Taft through the administration of G.H.W. Bush, designations of national monuments ranged from a minimum of zero to a maximum of 15 per president. Designations have not gone unchallenged—particularly when the size of the land withdrawn was extensive and burdensome to the States in which the monuments were situated. But no legal challenge to the proclamation of a national monument has yet been successful. Congress, however, has occasionally stepped in.

For example, when President Franklin Roosevelt designated 220,000 acres of land as the Jackson Hole National Monument, the State of Wyoming objected.[10] Congress also objected to what it viewed as a usurpation of its authority (it had been debating the inclusion of the land into a national park), and for several years thereafter attached provisions to Department of Interior appropriations bills that prohibited expenditures for the monument.[11] Wyoming sued; but the court upheld the designation.[12] Congress eventually passed legislation that restored some of the monument lands to Teton National Forest and merged the rest with Grand Teton National Park. The legislation also prohibited future unilateral presidential use of the Antiquities Act in Wyoming absent express Congressional authorization.[13]

Similarly, when President Carter set aside fifty-six million acres of land in Alaska to simultaneously create 15 national monuments (the high end of the range of designations noted above), the state of Alaska sued, seeking an injunction against President Carter’s use of the Antiquities Act.[14] As in previous cases, the President prevailed.[15] Congress, however, stepped in and repealed President Carter’s proclamations, imposed its own set of protections and uses for the land, and prohibited future withdrawals of Alaska land by the President that exceed 5,000 acres in the aggregate without approval by Congress.[16]

Beginning with President Clinton and continuing through President Obama, the scope and nature of designations began to grow and change. Some designations, such as President Obama’s designation of The Chimney Rock National Monument, encompassing 4,726 acres, or Stonewall National Monument, which encompasses 0.12 acres, appear to be consistent with Congress’ original intent, being limited in size and relevant to discernible “objects of historic interest.” Others, which will be discussed later in this series, departed markedly from the traditional application of the Antiquities Act.

Our series will continue next week with an overview of the environmental and public lands management laws the government currently uses to protect lands in its ownership or control.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.

Kara E. McKenna is a Counsel at Cause of Action Institute. Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies. You can follow her on Twitter @Kara_McK

[1] 54 U.S.C. § 320301 (2014).

[2] 54 U.S.C. § 320303.

[3] See Eric C. Rusnack, The Straw that Broke the Camel’s Back, Ohio State Law Journal, Vol. 64:669, 2003 at p. 674, n. 23.

[4] Id. at 674-75.

[5] H.R. Rep. No. 59-2224 at 2 (1906) (citing memorandum from Professor Edgar L. Hewett).

[6] Id.; 54 U.S.C. § 320301.

[7] 40 Cong. Rec. 7888 (1906). The version of the bill that was passed by the Senate in 1904 limited withdrawals to 640 acres, but that limitation was not included in the final Act.

[8] Proclamation No. 658, 34 Stat. 3236 (Sept. 24, 1906).

[9] Cong. Research Serv., National Monuments and the Antiquities Act (2017).

[10] Rusnack, supra, at 683.

[11] See David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, Natural Resources Journal, Vol. 22, April 1982, at 304, n. 140.

[12] Wyoming v. Franke, 58 F. Supp. 892 (D. Wyo. 9145).

[13] Id. at 305; 54 U.S.C. § 320301(d) (“No extension or establishment of national monuments in Wyoming may be undertaken except by express authorization of Congress.”).

[14] Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978).

[15] Id. At 1160.

[16] 16 U.S.C. §§ 3101-3223.

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05/3/2017

Senator Grassley Questions FBI Director Comey About Clinton Grand Jury Revelation made in CoA Institute Federal Records Act Litigation

Today, Senator Chuck Grassley questioned FBI Director James Comey about why the FBI revealed the information about the grand jury to us in litigation but refused to release the same information to him in response to congressional oversight.  The video of the hearing is available here; the exchange begins around the 3:09 mark.

As discussed in previous blog posts (here, here, and here), Cause of Action Institute, together with Judical Watch, is litigating a Federal Records Act case to compel the State Department and National Archives and Records Administration to perform their statutory obligations to initiate action through the Attorney General for the complete recovery of email records unlawfully removed from federal custody by former Secretary of State Hillary Clinton.

Last week, the government filed a declaration from Federal Bureau of Investigation (“FBI”) Special Agent E.W. Priestap, which revealed for the first time that the FBI had obtained grand jury subpoenas related to the Clinton email investigation.  Preistap stated: “The FBI also obtained Grand Jury subpoenas related to the Blackberry e-mail accounts, which produced no responsive materials, as the requested data was outside the retention time utilized by those providers.”

Here’s a transcript of key portions of that exchange:

Senator Chuck Grassley: Last week, the FBI filed a declaration in court pursuant to Freedom of Information Act litigation [ed. actually, it is a Federal Records Act case].  The FBI said that a grand jury issued subpoenas for Secretary Clinton’s emails.  Yet you refuse to tell this Committee whether the FBI sought or had been denied access to grand jury process from the Justice Department.  So, I think a very simple question is why does the FBI give more information to someone who files a lawsuit than to an oversight committee of Congress?  That has happened to me several times.

Director Comey: I’m not sure, Senator, whether that’s what happened here.  But you’re right, I refused to confirm in our hearings as to whether we used a grand jury and how.  I think that’s the right position.  Because I don’t know it well enough, I don’t think I can tell you . . . I don’t think I can distinguish the statements made in the FOIA case, as I sit here.

Senator Chuck Grassley: Just as a matter of proposition then!  If, I, Chuck Grassley as a private citizen file a Freedom of Information Act [request] and you give me more information than you’ll give to Senator Chuck Grassley, how do you justify that?

Director Comey:  Yeah, it’s a good question

Senator Chuck Grassley:  What do you mean it’s a good question?!  How do you justify it?!

Director Comey: It’s a good question, I can’t [justify it] as I sit here.

Senator Chuck Grassley:  Ye gods . . .

. . .

When was the grand jury convened? Was it before your first public statement about closing [the Clinton] case?

Director Comey: I’m still not in a position where I’m comfortable confirming whether and how we used a grand jury . . . in an open setting.  I don’t know enough about what was said in the FOIA case to know whether that makes my answers silly.  But I just want to be so careful about talking about grand jury matters.  So, I’m not going to answer that, sir.

In a word, yes, it does make Director Comey look silly to refuse to confirm the FBI’s use of grand jury subpoenas to Senator Grassley when the FBI has already sworn to the existence of the grand jury in federal court.

This exchange highlights one of the challenges of congressional oversight: agencies often refuse to cooperate with Congress.  That’s where CoA Institute steps in and helps bring transparency to an opaque federal government.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute and you can follow him on Twitter @JamesValvo.

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05/2/2017

The Rule of Lenity: A five-minute guide to navigating the intersection of administrative and criminal law

It is not often that you think of the terms “criminal defense” and “Chevron deference” in the same sentence. But this is starting to change given the ever-expanding number of quasi-civil and criminal statutes passed by Congress.

Indeed, much of the conduct that we would typically consider to be a violation of a regulation, subject to civil penalties in federal court or in an administrative tribunal, is criminalized in the same statute. And it is usually the government’s decision as to whether the case proceeds civilly or with handcuffs.

Read the full post by Cause of Action Institute Counsel Erica Marshall, published on The Federalist Society’s blog

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04/28/2017

Cause of Action Institute Joins Coalition Seeking Public Release of Congressional Research Service Reports

Congress needs to stop making it so difficult to get non-confidential information. To help make this reality, Cause of Action Institute signed onto a bipartisan coalition letter asking Congress to expand public access to non-confidential documents through the Congressional Review Service (“CRS”).  Congress should direct the CRS to create a system that provides free, easy access to all members of the public.

Virtually unknown outside of the D.C. beltway, the CRS plays an instrumental role in America’s legislative process.  The service provides policy and legal analysis for members of Congress in both parties.  Some of the reports it produces are confidential, but many of them are not.  The non-confidential reports could provide much-needed insight on legislative issues.  Considering taxpayers fund the CRS to the tune of $100 million annually, the public has a right to see its work.

Currently, the CRS permits public access to some documents, but the process is not simple and people have to jump through hoops to get reports.

The Congressional Review Service has suggested that there would be complications with releasing information, such as reproducing copyrighted information, needing to engage with the public and losing speech-and–debate clause protection.  However, these arguments are unfounded because its content has been cited in numerous media reports and court decisions.

For example, over the past ten years, Congressional Review Service documents have been cited in The Washington Post 67 times and The New York Times 45 times.  Moreover, the Government Accountability Office has made clear that the work of the U.S. government is not subject to copyright protection.

Confidential information must be protected, but  the public should be able to see what its government is doing and access the same information Congress uses to make decisions.

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04/27/2017

Antiquities Act Executive Order—Overwrought Response Disregards Real Risks of Lack of Transparency and Unbridled Presidential Discretion

Since news broke earlier this week that President Trump would be signing an Executive Order (“E.O.”) regarding the Antiquities Act, hysteria has ensued. It’s as if the President had declared a new Oklahoma Land Rush on some of America’s most treasured landscapes, and the backhoes were lined up and waiting for the sound of the gun to start digging up the land.[1] In the 24 hours since its signing, the outcry has reached fever pitch.  Some claim the E.O. is but the first step in giving away the nation’s public lands to corporate interests. Others lament that the E.O. does not go far enough to restore the proper balance among the varied interests involved in public lands management. Either way, such hyperbole misrepresents and overstates what the E.O. actually says and what it will likely achieve in its implementation.

When considering vocal competing views, I often find myself asking “how did we get here?” and “how do we move forward productively?” Regarding national monument designations, the answer to the former is lack of transparency and Presidential accountability. The answer to the latter is more transparency and public involvement in the national monument designation process.

The E.O. directs the Secretary of the Interior, Ryan Zinke to review all national monuments created by the Antiquities Act since January 1, 1996, that measure more than 100,000 acres or lacked appropriate public input. The E.O. also directs Secretary Zinke to provide two reports – a 45-day interim report regarding Bears Ears National Monument and 120-day final report regarding all other national monuments. The final report is to include suggestions regarding potential legislative proposals, and executive or other appropriate actions to restore trust between local communities and Washington, give voice to Governors of States and local and Tribal governments who are affected by monument designations, and put America back on track to manage our federal lands in accordance with the traditional multiple-use philosophy. The E.O. does not direct any action regarding any national monument nor direct the Secretary to reach any predefined conclusion. The E.O. is thus a rational first step in clarifying “how we got here,” and “how we move forward productively.” It is not, as some would claim, the beginning of the end for America’s public lands.

Since September 2016, Cause of Action Institute (“CoA Institute”) has been investigating the use, misuse, and abuse of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) by recent presidential administrations. To that end, CoA Institute has submitted over ten (10) Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), requests to various and executive branch offices agencies – Council on Environmental Quality (“CEQ”), Department of the Interior (“Interior Dept.”), Bureau of Land Management (“BLM”), and the National Oceanic and Atmospheric Administration (“NOAA”) – involved with national monument declarations. To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only a small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several concerns and highlight the pressing need for transparency and oversight in the national monument designation process.

The Antiquities Act was intended to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government” by permitting the President to declare such landmarks, structures, and objects of historic or scientific interest as national monuments.[2] The Act also permits the President to “reserve” land parcels as part of the national monument so long as such parcels are “confined to the smallest area compatible with the proper care and management of the objects to be protected.”[3] Alternatively, if the object is not situated on federal land, the object and the land may be relinquished to the federal government.[4]

While such statutory language should limit use of the Antiquities Act, in practice, the Act has been used by presidents to declare or expand national monuments with little more than the stroke of a pen. Since 1996, Presidents Bill Clinton, George W. Bush, and Barack Obama have declared over 55 national monuments, many with little or no publicly-available data, analyses, or impact studies to substantiate “the smallest area compatible” with “the proper care and management of the objects to be protected.” Problematically, some courts have held that the Act does not require the President “to make any particular investigation” prior to a monument being designated.[5] Thus, a President may declare a national monument without any information or data supporting the declaration. Because courts have been reluctant to review monument designations absent facts establishing and identifying lands that were improperly designated,[6] public recourse to challenge designations is essentially nonexistent. Indeed, no such challenge has yet been successful.

Although the bulk of the hysteria surrounding the E.O. relies on the assumption that national monuments are a benign tool for protecting rural land, many Americans would likely be alarmed to learn that under the current statutory and judicial rubric, the Act would permit the establishment of national monuments of a very different kind. For example, by a simple transfer in ownership of the relevant property to the federal government, President Trump could declare Trump Tower or Mar-a-Lago a National Monument by simply parroting a few key phrases in the declaring proclamation. There would be zero need to substantiate the “historical significance” of the property, the appropriate scope of the land included, or the need for that particular form of preservation. And – here’s the kicker – the declaration could include whatever protections and uses he deemed fit (such as requiring searchlights to cast a “protective” glow on the name of the building on a nightly basis) and, according to some, the monument designation could not be revised or reversed by a subsequent President, though there is disagreement on this point. Outrageous? Of course, Possible under the Act as written and applied today? Absolutely.

From a government oversight and transparency perspective, Presidential use of the Antiquities Act is rife with abuse, as major decisions impacting vast public lands, natural resources, property rights, and livelihoods are left to the sole discretion of the President, who is not required to substantiate his designation in any meaningful way beyond the use of a few magic words on the face of the declaring proclamation. Unchecked discretion and lack of recourse to remedy overbroad declarations, has resulted in misuse of the Antiquities Act. Further, as publicly reported, and evident in government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.

That is why today, CoA Institute submitted a letter to Secretary Zinke highlighting our concerns regarding recent misuse of the Antiquities Act, preliminary results of our ongoing investigations, and recommendations regarding oversight of existing monuments and increased transparency in the designation process.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org.

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.

Kara E. McKenna is a Counsel at Cause of Action Institute. Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies.

[1] Presidential Executive Order on the Review of Designations Under the Antiquities Act (Apr. 26, 2017) available at https://www.whitehouse.gov/the-press-office/2017/04/26/presidential-executive-order-review-designations-under-antiquities-act.

[2] 54 U.S.C. § 320301 (a).

[3] 54 U.S.C. § 320301 (b).

[4] 54 U.S.C. § 320301 (c).

[5] Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002).

[6] Id.

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