CoA Institute Highlights Problems with Presidents’ Unilateral Designation of Monuments

Washington D.C. – After President Trump yesterday signed an executive order to review previous presidents’ national monument designations under the Antiquities Act, Cause of Action Institute (“CoA Institute”) today sent a letter to Interior Secretary Ryan Zinke outlining why some designations may have been unlawful.

Signed into law over a century ago, the Antiquities Act authorizes the president to declare federal lands as part of monuments, which restricts how the lands can be used. Records obtained by CoA Institute indicate that some of President Obama’s designations may have resulted from collusion with outside environmental groups, while ignoring feedback from the local stakeholders who would be most harmed.

CoA Institute President and CEO John Vecchione: “Major decisions impacting Americans’ livelihoods, vast public lands, natural resources, and property rights are currently left to the sole discretion of the president. This is contrary to most of our system of government. Presidents failed to substantiate many designations in any meaningful way, beyond the use of a few magic words on the face of the proclamations. Unchecked discretion and lack of recourse to remedy overbroad proclamations has resulted in misuse of the Antiquities Act and undue restrictions on future use of vast swaths of federal lands.”

CoA Institute has submitted more than 10 Freedom of Information Act (“FOIA”) requests to various agencies and executive branch offices involved with national monument declarations.

Evident from 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.  More recent designations, such as the Northeast Canyons and Seamounts Marine National Monument and the expansion of the Cascade-Siskiyou National Monument have even been made in direct contravention of longstanding statutory frameworks established by Congress and trusted by local stakeholders.

To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only 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 of our concerns.

For example, it appears that third-party environmental groups knew about a forthcoming monument designation in the Atlantic Ocean prior to August 2015. However, local fishermen—who would be directly and adversely impacted by the designation— were notified only 12 days before the September meeting. As indicated in records we have reviewed, local fishermen were given only 250 words in a press release informing them of the meeting and seeking input on a then-undefined proposal. In contrast, third party organizations had enough in-depth information in advance of the meeting to build online petitions supporting a monument in the Atlantic Ocean that were pushed out to their members nationwide.

As part of our ongoing oversight, CoA Institute continues to investigate:

  • The role certain Members of Congress played in lobbying President Obama to take unilateral action under the Antiquities Act;
  • Potential collusion between outside groups and the Obama Administration to declare national monuments;
  • Lack of transparency regarding monument designations;
  • Pretextual public hearings relating to predetermined monument designations;
  • The continued acquisition of private lands in and around existing national monuments to expand such monuments; and
  • The legality of agency rulemakings to enforce Antiquities Act designations.

The full letter can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

John Vecchione discusses FBI lawsuit, Trump dossier on The Derrell Day Show

 

Criminal Prosecutions on Tax Day: “If this is the law, nobody is safe”

Tax Day is just behind us, marking the ceremonial American tradition of waiting to the last minute to electronically file a Form 1040 in the hopes of receiving a tax refund (or maybe that is just me). This year alone, the IRS expects to process approximately 150 million tax returns.  But few Americans stop to think before clicking “submit,” about the sheer breadth of information they are supplying.  A tax return is an intimate financial portrait that details your income, marital status, number of dependents, the property and assets you’ve acquired, and gifts you’ve received, all based on documents and receipts collected throughout the previous year.

Remember on tax day that while Title 26 of the United States Tax Code gives the IRS the power to levy taxes, it also creates criminal sanctions to make sure people pay what they owe. Tax evasion is a felony, as is failure to pay any tax due, filing a false return, and not filing a return at all in some cases.  But what if otherwise legal acts or omissions—like not keeping financial records, throwing away receipts, not giving all of your documents to your accountant, cashing checks, or even using cash—were also a felony under the tax code?  Tax cheats should be prosecuted, but the law needs to be applied in a way so that the millions of Americans who file tax returns every year, but might not keep receipts or documents, cannot be caught up in an overreaching prosecution.

This was the issue that faced the Second Circuit in United States v. Marinello.  Carlo Marinello ran a courier company in New York and didn’t file tax returns for a number of years.  He was indicted with eight counts for failure to file a tax return.  However, the government also charged him with a felony for “corruptly obstruct[ing] or imped[ing]…the due administration of the [tax code]” under 26 U.S.C. § 7212(a).

This statute states:

Whoever corruptly or by force or threats of force … endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under [Title 26], or in any other way corruptly or by force or threats of force … obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both.

According to the indictment, Mr. Marinello could be guilty of the felony of corruptly obstructing or impeding the administration of the tax code by performing acts as common as “failing to maintain corporate books and records,” “failing to provide [his] accountant with complete . . . information related to [his] personal income,” “discarding business records,” “cashing business checks,” and “paying employees in cash” because he performed these acts and omissions with the intent to obtain an unlawful benefit—not paying taxes. The jury convicted Mr. Marinello on this basis, and the Second Circuit affirmed the conviction.

The other felony provisions in Title 26, including the felony for not paying taxes under section 7202, impose a “willfull” mens rea requirement, which requires the government to prove that the person had a “guilty mind” and acted with the knowledge that his conduct was unlawful, and made a voluntary, intentional violation of a known legal duty.  However, the obstruction statute punishes anyone who “corruptly” endeavors to obstruct or impede the administration of Title 26, a much lower standard.  To act “corruptly” is to act “with intent to gain an unlawful advantage or benefit for oneself or for another.”

As this otherwise statutorily-undefined term has been applied across the land, and by the Second Circuit in Mr. Marinello’s case, any act or omission that obstructs the administration of the tax code is a felony so long as the defendant committed that act or omission to gain an “unlawful benefit”—whether or not the defendant knew that benefit was unlawful, whether or not the act or omission itself is a legal act, and whether or not the unlawful benefit sought by the defendant was even related to the tax code.  Troublingly, this “obstruction” statute has become a catchall felony provision with a reduced mens rea requirement that has swallowed the other criminal provisions in the tax code.  For example, it is hard to imagine how failing to file a tax return would not also impede the administration of the tax code.

Disagreeing with the Second Circuit, and concerned about the overbreadth and vagueness of the statute, the Sixth Circuit has cabined the obstruction statute to require that the government prove that the defendant took action to impede or obstruct a pending IRS investigation or action, such that a particular IRS employee was obstructed by the defendant’s conduct. United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998).

Mr. Marinello filed a petition for a writ of certiorari with the Supreme Court, asking it to hear his case and resolve the split between the Sixth Circuit and the Second Circuit. Cause of Action Institute and the National Association of Criminal Defense Lawyers filed a “friend of the court” brief, urging the Supreme Court to take the case to clarify the type of conduct that is criminalized under the tax code.  As Judge Jacobs of the Second Circuit warned in his dissent from the rest of the court, “if this is the law nobody is safe.”

The full amicus brief can be found here

Erica Marshall is counsel at Cause of Action Institute

The Center for Biological Diversity’s Flawed Legal Challenge to the Congressional Review Act – Part II

This post is Part II in a series discussing the lawsuit from the Center for Biological Diversity.  Part I is available here.

The joint resolution disapproving the Refuges Rule was a proper use of the CRA’s look-back provision.  But even if it wasn’t, a court is unlikely to overturn the resolution on that basis.

A joint resolution disapproving an agency rule via the Congressional Review Act (“CRA”) really only differs from any other law invalidating a regulation in two respects.  First, it allows the Senate to pass the resolution without needing sixty votes to end debate.  The 60 vote necessity to do so for other legislation is not a Constitutional mandate.  And second, it prohibits the agency from reissuing the rule in substantially the same from.  The latter provision could be added to any piece of legislation overturning a regulation, so all that is really at stake is whether the Senate may operate under expedited procedures and a lower vote threshold.

The CRA requires a disapproval resolution to be introduced within sixty days of the agency submitting the requisite report to Congress.[1]  But if the report is submitted within the final sixty legislative days of a congressional session, then that report is considered to have been submitted on the fifteenth legislative day of the new Congress.[2]  This is known as the look-back provision and it is designed to allow a new Congress to review all of the midnight rules rushed out the door at the end of the previous Congress.  The look-back provision is especially important after an election year when a lame-duck administration tries to push through an aggressive regulatory agenda for the incoming administration to unravel.

In its lawsuit, the Center for Biological Diversity  claims that the Refuges Rule was not eligible for the CRA’s look-back scheduling provision because it qualifies as a hunting regulation that is exempt from Section 801’s reporting requirements by Section 808.[3]  This claim fails for at least two reasons.  First, the look-back provision is an internal congressional scheduling rule, which is the type of rule courts often avoid under the political-question doctrine.  Second, the Refuges Rules does not qualify as a hunting rule under the Section 808 exemption and was thus properly subject to the look-back provision.

The interpretation of internal congressional rules is a political question that courts often avoid.

Congress creates its own rules of administration and courts are loath to meddle in them.  The Constitution states that “[e]ach House may determine the rules of its proceedings[.]”[4]  Legal challenges to those rules often implicate the political question doctrine, under which courts avoid cases where there has been a “textually demonstrable constitutional commitment of the issue to a coordinate political department.”[5]

One example is Metzenbaum v. Federal Energy Regulatory Commission, where the D.C. Circuit found that judicial interpretations of congressional rules is inappropriate because “there is ordinarily ‘no warrant for the judiciary to interfere with the internal procedures of Congress.’”[6]  “To decide otherwise would subject Congressional enactments to the threat of judicial invalidation on each occasion of dispute over the content or effect of a House or Senate rule.  The majority having given its sanction to legislation, and implicitly the process followed in its enactment, a minority might yet frustrate its implementation through litigation based on purported violations of ‘housekeeping’ rules.”[7]  One exception to this rule is where the “rights of persons other than members of Congress are jeopardized by Congressional failure to follow its own procedures[.]”[8]  This approach has given rise to the so-called “enrolled bill rule,” which holds that “if a legislative document is authenticated in regular form by the appropriate officials, the courts treat that document as properly adopted.”[9]  This rule stretches all the way back to the Supreme Court’s 1892 decision in Field v. Clark.[10]

Here, the CRA is clear that the look-back provision is nothing more than a scheduling rule of Congress:

This section is enacted by Congress as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution[.][11]

There does not appear to be any contention that the joint resolution was improperly voted on or incorrectly enrolled by the congressional officials upon its passage.  The Center for Biological Diversity merely claims that Congress should have determined that the Refuges Rule was ineligible for the look-back provision.  But Congress did make that determination, and courts are typically hesitant to get involved in such matters.

This conclusion is buttressed by the fact that the CRA expressly precludes judicial review of congressional determinations made under the CRA.  Section 805 states that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.”[12]  The determination made by both chambers of Congress that the Refuges Rule qualifies for the look-back scheduling provision is precisely the type of “determination” that the CRA exempts from judicial review.

The Refuges Rule does not qualify for the Section 808 exemption.

Despite theCenter for Biological Diversity’s claim, the Refuges Rule does not fall within the CRA’s Section 808 exception.  The CRA provides that “[b]efore a rule can take effect,” the agency promulgating the rule must submit a report to Congress.[13]  Section 808 provides that notwithstanding that requirement, a rule may take effect at such time as the agency decides if the rule “establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping[.]”[14]  The Center for Biological Diversity claims that the “Refuges Rule is covered by the plain language of Section 808 . . . [b]ecause it disallows certain hunting practices that may be approved by the Board[.]”[15]

Although the Center for Biological Diversity is correct that the Refuges Rule affects hunting practices, it makes no attempt to argue that the regulation impacts “a regulatory program” aimed at “commercial, recreational, or subsistence activity.”  By its plain terms, the Refuges Rule is not directed at subsistence activity; it is titled “Non-Subsistence Take of Wildlife”[16] and the Center for Biological Diversity admits in its complaint that the rule does not affect takes “for subsistence by federally-qualified subsistence users.”[17]  The rule also does not affect either commercial or recreational activity but is instead aimed at “the conservation of natural and biological diversity, biological integrity, and environmental health on refuges in Alaska[.]”[18]  The rule focuses on “predator control” by “prohibit[ing] several particularly effective methods and means for take of predators[.]”[19]  The U.S. Fish and Wildlife Service (“FWS”) “define[s] predator control as the intention to reduce the population of predators for the benefit of prey species.”[20]  This includes practices “such as . . . those undertaken by government officials or authorized agents, aerial shooting, or same-day airborne take of predators.  Other less intrusive predator reduction techniques such as . . . live trapping and transfer, authorization of particularly effective public harvest methods and means, or utilizing physical or mechanical protections (barriers, fences) are also included[.]”[21]

The Refuges Rule does not affect a regulatory program involving commercial licenses, recreational takes, or any type of nonconsumptive recreational use, such as wildlife viewing or photography.  The Refuges Rule is a conservation regulation, which is not included among Section 808’s exceptions.

FWS is clear about this in its final rule.  In response to a commenter concerned that the regulation would impact ecotourism, FWS responded: “Although this rule may result in slight changes in refuge visitor experiences, we do not expect this rule to significantly impact visitors engaged in either hunting or nonconsumptive uses like wildlife viewing.”[22]  FWS also wrote that “there may be slight effects to recreational big game hunting on refuges by eliminating a hunter’s ability to use a few specific methods and means of take.  However, until recent years, many of these methods and means were prohibited Statewide.”[23]  FWS inclusion of passing references to “slight changes” and “slight effects” to recreational activities demonstrates that the Refuges Rule does not establish, modify, open, close, or conduct “a regulatory program” related to commercial or recreational activities.  At most, it may have slight impacts on other regulatory programs not included in this rule.[24]

Therefore, the Refuges Rule does not qualify for the CRA’s Section 808 exception and all of Center for Biological Diversity’s arguments that follow from that characterization (i.e., that the Refuges Rule is not eligible for the look-back provision) must fail.

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

 

[1] 5 U.S.C. § 802(a).

[2] Id. § 801(d)(1).

[3] Id.

[4] U.S. Const. art. 1, § 5, cl. 2.

[5] Baker v. Carr, 369 U.S. 186, 217 (1962).

[6] 675 F.2d 1282, 1287 (D.C. Cir. 1982) (citing Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C.Cir.1978)); see also Christoffel v. United States, 338 U.S. 84, 88–89 (1949) (“Congressional practice in the transaction of ordinary legislative business is of course none of our concern, and by the same token the considerations which may lead Congress as a matter of legislative practice to treat as valid the conduct of its committees do not control the issue before us.”); Mester Mfg. Co. v. INS, 879 F.2d 561, 571 (9th Cir. 1989) (“In the absence of express constitutional direction, we defer to the reasonable procedures Congress has ordained for its internal business.”).

[7] Metzenbaum, 675 F.2d at 1287.

[8] Id.; see also United States v. Rostenkowski, 59 F.3d 1291, 1305 (D.C. Cir.), opinion supplemented on denial of reh’g, 68 F.3d 489 (D.C. Cir. 1995) (The “Rulemaking Clause is not an absolute bar to judicial interpretation of the House Rules.”).

[9] United States v. Sitka, 845 F.2d 43, 46 (2d Cir. 1988) (citing United States v. Thomas, 788 F.2d 1250, 1253 (7th Cir. 1986)).

[10] 143 U.S. 649 (1892).

[11] 5 U.S.C. § 802(g).

[12] Id. § 805.

[13] Id. § 801(a)(1)(A).

[14] Id. § 808(1).  This section also exempts “any rule which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest[.]”  Id. § 808(2).  Although the CRA’s legislative history makes passing reference to the section 808(1) delay, it does not provide a reason for why Congress included this provision.  See 142 Cong. Rec. S3683-01, S3685 (Apr. 18, 1996).

[15] CBD Compl. ¶ 58 (citing 5 U.S.C. § 808).

[16] “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,247 (August 5, 2016) (the “Refuges Rule”); Id. at 52,247 (“This rule does not change Federal subsistence regulations or restrict the taking of fish or wildlife for subsistence uses under Federal subsistence regulations.”).

[17] CBD Compl. ¶ 37 (“The regulations do not change Federal subsistence regulations or otherwise restrict the taking of fish or wildlife for subsistence by federally-qualified subsistence users.”).

[18] Refuges Rule, 81 Fed. Reg. at 52,247.

[19] Id.

[20] Id. at 52,252.

[21] Id.

[22] Id. at 52,260.

[23] Id.

[24] 5 U.S.C. § 808(1).

Fishermen in New England Face Another Costly Regulation

The New England Fishery Management Council (“NEFMC”) held a meeting on April 20, 2017 [pictured above] to discuss a controversial omnibus amendment that would require more fishermen to pay for at-sea monitors, which should be the government’s responsibility.

The monitors would cost between $710-$818 per day at sea, which is more than the average daily revenue of a fisherman, rendering fishing unprofitable for many smaller-scale boats.

Cause of Action Institute Vice President Julie Smith attended the meeting and questioned the legality of the rule change, citing the Magnuson-Stevens Act, which, she said, does not permit the Council to implement this regulation. She advised the Council to take a different course of action to avoid likely court challenges to overturn the amendment. Listen to Smith’s full remarks here:

 

In a written comment submitted on April 11, 2017, Smith provided alternatives for the council to consider. The council could scrap the amendment entirely, work with the National Marine Fisheries Service to get the funds, or petition Congress for the funds.

However, she said shifting the cost burden onto fishermen would be “ill-advised.”

CoA Institute represents fishermen challenging another industry-funded monitoring program in the Northeast groundfish fishery. In that case, a government study predicted that industry-funded monitoring would result in up to 60 percent of mostly small-scale vessels going out of business—a result that the government blithely characterized as a “restructuring” of the groundfish fleet.  Learn more about the case HERE

The Center for Biological Diversity’s Flawed Legal Challenge to the Congressional Review Act – Part I

On April 20, 2017, the Center for Biological Diversity (“CBD”) filed suit in the U.S. District Court for the District of Alaska challenging the Congressional Review Act (“CRA”) and Congress’s use of the CRA to invalidate the so-called Refuges Rule.[1]  The suit claims the CRA violates the separation of powers and that it is ultra vires (illegal) for the Department of the Interior to honor the disapproval resolution.  As explained below, these claims have little merit and although the litigation will likely not end until the Supreme Court has spoken, we believe the courts will ultimately rule the CRA is constitutionally valid.

CBD fails to acknowledge that Congress intentionally included, as a direct result of the Chadha decision, the constitutional mandates of bicameralism and presentment in the Congressional Review Act disapproval procedure.  

Bicameralism and presentment is the Constitutional requirement that both Houses of the Congress pass a bill and that it be presented to and signed by the President.[2]  The CRA satisfies the constitutional mandates of bicameralism and presentment two-fold.  First, both Chambers of Congress passed the CRA and presented it to President Clinton, who signed it in March 1996 – satisfying the requirements of bicameralism and presentment when enacting the statute.  Second, the CRA disapproval process requires that each joint resolution be an enacted law that is passed by both Chambers and signed by the President.[3]  Until 2017, the CRA’s disapproval procedure had only been successfully used once because the bicameralism and presentment requirements make it difficult to pass without a unified legislative and executive government.  Historical attempts to use the CRA resulted in three joint resolutions failing to pass both Chambers and five joint resolutions being vetoed by the President.  These constitutional safeguards continue to restrain the unfettered use of the CRA to avoid separation-of-powers claims.

CBD refuses to acknowledge that CRA joint resolutions of disapproval conform to these constitutional requirements and are duly enacted laws.[4]  CBD repeatedly claims that a CRA disapproval resolution’s constraint on future rulemaking activity violates INS v. Chadha because Congress must use the constitutionally-mandated process of bicameralism and presentment to amend underlying statutes.[5]  That is, it argues that the CRA’s prohibition on the Department of Interior issuing the Refuges Rule in substantially the same form is an invalid attempt to restrain the agency.  CBD’s reliance on Chadha is misplaced because Congress enacted the CRA in the aftermath of Chadha, and crafted the CRA disapproval process with Chadha in mind.  While CBD is correct that the Chadha holding reiterates Congress’ obligation to use bicameralism and presentment to enact laws; CBD ignores the distinguishing facts of Chadha.  In Chadha, Congress used a “single-chamber legislative veto” to overturn a presidential immigration enforcement decision.  By its very name, a “single-chamber legislative veto” does not satisfy the bicameralism requirement.  The legislative history of the CRA specifically mentions Congress’ decision to require the enactment of joint resolutions to avoid future Chadha-based challenges.[6]  According to CBD, Congress failed to disapprove of the Refuges Rule in conformity with bicameralism and presentment.  But the lawsuit details when the joint resolution was passed by each Chamber and states that “[a]fter presentment on March 27, 2017, President Trump signed the Joint Resolution on April 3, 2017.”[7]

CBD’s separation-of-powers claim must fail because, as with any other enacted law, the joint resolution disapproving the Refuges Rule satisfied the constitutional mandates of bicameralism and presentment.  Having refuted CBD’s claim that CRA and the disapproval resolution for the Refuges Rule did not satisfy the requirements of bicameralism and presentment, we move to its claim that agency rulemaking authority can only be restricted by Congress when it amends the underlying authorizing statute.

CBD fails to acknowledge numerous administrative law procedural statutes that constrain agency rulemaking authority without amending an agency’s underlying authorizing statutes.

The CRA prohibits agencies from issuing subsequent rules in “substantially the same form” as a disapproved rule.  This ban acts as an additional constraint on agency rulemaking authority similar to other procedural statutes found throughout administrative law.  The Administrative Procedure Act (“APA”), the Regulatory Flexibility Act (“RFA”), the National Environmental Policy Act (“NEPA”), the Unfunded Mandates Reform Act (“UMRA”), and the Small Business Regulatory Enforcement Fairness Act (“SBREFA”) all restrict agency rulemaking authority by creating procedural requirements that can restrain agencies by requiring them to regulate using different alternatives based on the predicted outcomes.[8]  These constraints on agency rulemaking authority help reduce separation-of-powers concerns from the other side of the coin–that Congress unconstitutionally delegated too much authority to the agency.  To avoid an unconstitutional delegation of power, courts have been supportive of enforcing these procedural restraints on agency rulemaking.[9]  Here, through the CRA, Congress is constraining its previously delegated legislative authority to Interior.  Therefore, CBD’s claim that agency rulemaking authority may not be constrained without amendment of the underlying statute must fail.

CBD fails to acknowledge Congress’ constitutional authority to constrain agency rulemaking authority using its power of the purse.

Alternatively, Congress may approve or disapprove of agency action by using its taxing and spending powers to decide whether to appropriate funds to an agency program.[10]  Appropriations riders can be tacked on to bills being considered by Congress without being related to the goals of the underlying bill.  One type of these is limitation riders which often specifically prohibit the use of funds for specific agency activities or programs.  Using its power of the purse, Congress can use limitation riders to prevent agencies from using any funds on programs that Congress does not approve of – without amending the underlying authorizing statute that might prescribe the agency take that action.[11]  In 2000, Congress used an appropriations rider to restrict Interior’s ability to promulgate final rules concerning hard rock mining–without amending Interior’s underlying statutory authority to prescribe rock mining restrictions.[12]  No limitation rider has ever been successfully challenged in court as violating the separation of powers.

The CBD lawsuit repeatedly asserts that the CRA prohibition on subsequent rules in “substantially the same form” violates the separation of powers because Interior’s underlying authorizing statute was not amended.  This argument fails because it does not consider that Congress is the genesis of agency rulemaking authority.[13]  These assertions ignore all prior procedural statutes that constrain agency rulemaking authority without amending the agency’s underlying authorizing statute.  This argument also ignores Congress’ authority to constrain agency rulemaking authority by passing appropriations riders.  Because Article I legislative authority is vested solely in Congress, the executive branch has little or no inherent authority to promulgate rules.  Congress is the only branch that may enact laws to create, delegate authority to, or abolish agencies as it deems appropriate to carry out the legislative function.[14]  Congress, then, may rescind the authority it delegates to agencies by enacting or repealing laws.  Indeed, federal agencies, not Congress, violate the separation of powers when they usurp the essential legislative function of Congress by continuing to promulgate regulations in direct contravention of enacted laws.  Therefore, CBD’s claim that Congress has “expanded its own power at the expense of the executive branch” is incorrect because agency rulemaking authority flows from Congress alone and has been constitutionally constrained by numerous prior statutes and appropriations riders.[15]

Travis Millsaps is a counsel at Cause of Action Institute.  You can follow him on Twitter at @TravisMillsaps.

[1] Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska, 81 Fed. Reg. 52,247 (Aug. 5, 2016) (the “Refuges Rule”).

[2] U.S. Const. art. 1, § 7, cls. 2, 3; id. art. 1, §§ 1, 7, cl. 2.

[3] 5 U.S.C § 801(b)(1) (referring to § 802 disapproval process).

[4] CBD Compl. ¶ 45 (claiming that any reliance by Interior on enacted joint resolution of disapproval is “contrary to law”).

[5] E.g., CBD Compl. ¶¶ 4, 21-23, 27, 44 (citing 462 U.S. 919 (1983)).

[6] CRA Legislative History, 142 Cong. Rec. at S3684 (bill sponsors citing Chadha and resolving that the case “narrowed Congress’ options to use [the CRA’s] joint resolution of disapproval”).

[7] CBD Compl. ¶ 39 (emphasis added).

[8] E.g., Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.; Regulatory Flexibility Act, §§ 601-12; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; Unfunded Mandates Reform Act, Pub. L. No. 104-4; Small Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121 (1996); see generally 42 U.S.C. § 4332.

[9] See United States v. Henry, 136 F.3d 12 (1st Cir. 1998) (discussing that existence of multiple constraints on delegated legislative authority to EPA supports finding of constitutional delegation of power).

[10] U.S. Const. art. 1, § 8, cl. 1.

[11] Id. § 9, cl. 7.

[12] Pub. L. No. 106-291, § 156, 114 Stat. 922, 962-963 (prohibiting Secretary of Interior from using any funds “to promulgate final rules to revise 43 C.F.R. subpart 3809[.]”).

[13] CBD Compl. ¶¶ 2, 5, 40-42, 44.

[14] U.S. Const. art. 1, § 8, cl. 18.

[15] CBD Compl. ¶ 4.

A Low Bar for White House Transparency – But Concerns Rising

Citing “national security risks and privacy concerns,” the White House recently announced that it would no longer disclose the contents of its visitor logs to the public, contrary to a policy introduced and maintained (albeit, inconsistently) by the Obama Administration.  According to The New York Times, White House press secretary Sean Spicer went so far as to suggest that disclosure would be “unnecessary, intrusive, or even harmful.”

The Trump Administration’s proffered justification for reversing President Obama’s discretionary disclosure of the logs is overstated. While the Executive Branch has an undeniable interest in some secrecy, the goals of good government are better served when the public has knowledge of those with whom the President—the quintessential public servant—is spending his time, whether in consultation about government policy or on the golf course.  Yet the decision to keep visitor logs secret is only the latest indication of a troubling trend emerging from the Trump White House regarding a lack of support for open and transparent government.

Of greater concern than the discontinuation of the WH visitor logs is the apparent continued use by the Trump administration of the policy known as “White House equities.”

When a member of the public requests records from a federal agency under the Freedom of Information Act (FOIA), that agency will often “consult” or seek the input of another government entity that created any record at issue.  Under the Obama Administration, however, evidence suggested that agencies were sending records to the Office of White House Counsel whenever they were politically sensitive, newsworthy, or otherwise embarrassing to the administration.  The result of this policy was to delay the production of records when they should have been promptly released under FOIA requirements.  Cause of Action Institute even filed a lawsuit in an attempt to reverse President Obama’s overbroad “White House equities” policy.

Shortly after President Trump’s inauguration, we reached out to the new White House Counsel to request revisions to, or elimination of, this damaging policy.  We have yet to receive a response.

Ending “White House equities” review as currently practiced would strike a blow for accountability and the rule of law and would send a strong signal that this administration takes seriously its obligations to the public.  As others have noted, President Obama promised transparency and delivered one of the most secretive governments in American history.  The bar is already low; President Trump can and should do better.

Josh Schopf and Ryan Mulvey are counsels at Cause of Action Institute