On October 9, 2019, the White House issued two executive orders designed to curtail the abuse of guidance documents by government agencies. Both orders address due process violations by agencies by requiring notice and an opportunity to be heard before action can be taken or liability imposed against alleged wrongdoers. Learn More
07/6/2018
OMB Confirms Agencies Required to Disclose Earmarks, Declines to Enforce
The White House Office of Management and Budget (“OMB”) has confirmed that all executive branch agencies are required to disclose attempts by congressional and other outside force to influence the merit-based decision-making process for federal spending. These efforts to earmark federal spending must be disclosed on agency websites within thirty days of their receipt. But OMB has refused to issue new guidelines directing agencies to comply with the rule.
OMB’s reaffirmation came in a letter during litigation declining Cause of Action Institute (“CoA Institute”) and Demand Progress’s 2015 petition for rulemaking that asked the agency to enforce President George W. Bush’s Executive Order 13,457.
Background
In 2008, during the congressional debate over the earmark ban, President Bush issued EO 13,457, both to take a position in the ongoing debate and in an attempt to foreclose members of Congress from evading the ban by going directly to agencies. Part of the order relied on transparency as a tool to dissuade these “executive branch earmarks” by requiring agencies to publish efforts to influence their decision making on their website within thirty days of receiving such communications. The order also directed agencies not to fund these “non-statutory” earmarks. Shortly after, OMB issued a memorandum instructing agencies how to comply with the order while implementing recent appropriations law.
CoA Institute had concerns that agencies were not complying with the order and conducted an investigation into which agencies were properly disclosing executive branch earmarks; only the Departments of Justice and Energy had published any meaningful content on their website.
In 2015, CoA Institute joined with Demand Progress and asked President Obama’s White House to depoliticize federal spending decisions by upholding the order. We filed a petition for rulemaking asking the Obama OMB “to issue a rule ensuring the continuing force and effect of Executive Order 13457[.]”
In November 2017, after two years of not receiving a response, CoA Institute sued OMB over its failure to act on the petition. With a new administration now in the White House, we urged President Trump’s OMB to issue updated guidance ensuring that agencies followed the order and disclosed earmarking efforts.
OMB Declines Petition, Confirms Executive Order Still in Effect
Due to the lawsuit, OMB has finally responded. Although OMB declined to issue a new memorandum, it confirmed that “EO 13457 Remains In Force [because] No Executive Order has been issued that displaces, alters, or withdraws EO 13457 and [because] OMB is also not aware of any judicial decision vacating EO 13457.”
Therefore, agencies are still obligated both to refuse to fund non-statutory earmarks and disclose any attempts to influence their decisions within thirty days. The Trump Administration, however, refuses to make them live up to their responsibilities.
James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.
11/2/2017
CoA Institute Sues OMB, Compelling it to Take Transparency Policy Seriously
Cause of Action Institute (“CoA Institute”) has sued the White House Office of Management and Budget (“OMB”) for failing to respond to two petitions for rulemaking that CoA Institute submitted to the agency. These two petitions—both aimed at increasing government transparency—were filed during the Obama Administration but were ignored. One petition for rulemaking focused on the OMB’s outdated Freedom of Information Act fee guidelines while the other focused on an executive order related to earmarking. We hope these lawsuits will spur the Trump Administration to action to increase the public’s ability to know what its government is up to.
Petition for Rulemaking on OMB’s Outdated FOIA Fee Guidelines
The Freedom of Information Act requires agencies to produce records on a reduced fee schedule if the requester qualifies as a “representative of the news media” or other favored category. The FOIA requires agencies to issue records free of charge if the information is in the public interest and the requester has a means to distribute it. Unfortunately, agencies often use these fee provisions as a mechanism to block requesters that are doing rigorous oversight of the agency.
As information technology advanced over the past two decades, Congress recognized that journalism was changing in fundamental ways and that citizen journalists and nonprofit organizations were just as vital to conducting government oversight as the traditional news media. That’s why, in the Open Government Act of 2007, Congress provided a statutory definition of a “representative of the news media” that expressly noted that “as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.”[1]
But the FOIA also requires OMB to develop and maintain guidelines on FOIA fee issues and it requires agencies to conform their regulations to OMB’s guidelines. In 1987, OMB issued its one and only guidance document on FOIA fees and in that document it requires “representatives of the news media” to work for organizations that are “organized and operated to publish or broadcast news to the public.” The Federal Trade Commission (“FTC”) attempted to use this outdated standard against CoA Institute to deny us a preferable fee status and thus drive up the cost of our oversight of that agency. We took the FTC to the D.C. Circuit and won. The opinion in that case explained that the “organized and operated” standard was no longer proper.[2]
Yet ten years after Congress changed the statutory standard and two years after the D.C. Circuit directed that the “organized and operated” standard was no longer viable, dozens of agencies still employ it and OMB still has not updated its 1987 FOIA fee guidance.
In an effort to spur OMB to reform its outmoded guidance and to move all agencies toward compliance with the statute, CoA Institute filed a petition for rulemaking with OMB in June 2016. The agency has not responded to that petition and we were forced to sue to bring the issue to resolution.
Petition for Rulemaking on Executive Order 13457
In 2008, President George W. Bush issued Executive Order 13457 to pressure Congress to reform its profligate earmarking practices. The order required, inter alia, that executive-branch agencies proactively disclose any attempts by members of Congress or their staff to influence discretionary spending decisions the agencies were making. President Bush directed OMB to ensure that agencies complied with the order.
Through an investigation, CoA Institute was able to establish that OMB understood Executive Order 13457 to apply to both legislative earmarks (i.e., spending directives in statute and committee reports) and executive branch earmarks (i.e., efforts by outside forces to pressure agencies to make certain spending decisions). CoA Institute’s investigation also revealed that very few agencies were complying with the order; the Department of Energy was a notable exception.
In an effort to spur the Obama Administration to implement Executive Order 13457, CoA Institute joined with Demand Progress and filed a petition for rulemaking at OMB asking it “to issue a rule ensuring the continuing force and effect of Executive Order 13457, Protecting American Taxpayers From Government Spending on Wasteful Earmarks[.]” More than two years have passed since we filed the petition and OMB has not responded.
Conclusion
The White House Office of Management and Budget sits at a unique place in the federal administrative state. It has the opportunity to put in place and require adherence to cross-agency rules that can increase or decrease government transparency. Ensuring that FOIA fees are not improperly used to block agency oversight and requiring proactive disclosure of congressional attempts to influence agency discretionary spending decisions are two ways OMB can make a difference. CoA Institute has filed suit today to compel them to take these responsibilities seriously.
James Valvo is counsel and senior policy advisor at Cause of Action Institute. He was instrumental in crafting both petitions for rulemaking and the lawsuit discussed in this post. You can follow him on Twitter @JamesValvo.
[1] 5 U.S.C. § 552(a)(4)(A)(ii)
[2] Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 (D.C. Cir. 2015).
06/19/2017
White House Should Release 100K Public Comments on Reforming Government
Washington, D.C. – Cause of Action Institute (“CoA Institute”) today submitted a Freedom of Information Act (“FOIA”) request to the White House Office of Management and Budget (“OMB”) seeking access to the more than 100,000 public comments OMB collected regarding “improvements to the organization and functioning of the Executive Branch.”
Between May and June, 2017, Americans were invited to submit suggestions to OMB in response to President Trump’s March 13 executive order calling for a comprehensive plan to reorganize the Executive Branch. The comments, however, have not been made publicly available.
CoA Institute President and CEO John Vecchione: “Public input can be a fundamental component of government reform, but there is little reason to sacrifice transparency. Given that President Trump’s executive order calls for the possible overhaul of the entire Executive Branch, the need for transparency and open public scrutiny of this matter is paramount.”
In addition to the regulations.gov website, which is routinely used by the federal government for gathering public comments, OMB also collected comments via an online form housed on a White House website. There appears to be a discrepancy between the reported number of comments and suggestions submitted via the reorganizing website, which states that “100,000+ suggestions and ideas” were submitted, and regulations.gov, which states that only 2,019 comments were received.
CoA Institute today requested access to all comments, suggestions, and ideas submitted to the OMB as part of this effort. The FOIA request is available here.
For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org
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.
02/3/2017
Pitfalls of Politicization
Disregard of legal standards that apply to everyone to achieve immediate political goals is never good. Politicization tends towards pernicious, unpredictable results. It is particularly erosive when it infects the administration of justice. Developments in Texas v. United States, a federal case testing the limits of the President’s and Congress’s authority to set immigration policy, demonstrate just how—and how much—politicization can undermine the rule of law.
Back in May 2016, Judge Andrew Hanen of the Southern District of Texas found that lawyers representing the United States made a series of misstatements to the court and the 26 plaintiff States and that those lawyers knew the truth when they spoke. In 2014 and 2015 those lawyers misrepresented, among other things, timing under an executive order that expanded an immigration program to millions of additional persons, most of whom were parents of children born here as citizens, for whom permissible work periods were expanded to three years. Arising from the interplay of immigration, constitutional, and administrative law, the legal issues in Texas v. United States were complex.
But the problematic misrepresentations by the Justice Department’s lawyers were straightforward. The lawyers for the United States said that the immigration authorities wouldn’t start implementing the program before February 2015. That led the court and 26 States to forego extraordinary proceedings for emergency relief that might have resulted in a restraining order expressly preventing implementation by the federal government. The same lawyers also misrepresented how many three-year extensions were at issue, and the government granted over 100,000 before the truth came out in court. “[T]he Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.” The misrepresentations enabled the government to do broadly what could have been expressly restrained.
The court, quite reasonably, asked Why? The DOJ gave several reasons, none sufficient. The scores of government lawyers working on the case “lost focus” on the facts which had “receded in memory or awareness.” That excuse gives away the cake: it admits a breach of every lawyer’s duty of competence. The government’s other excuse was that many lawyers were responsible for the case, spread across multiple agencies. The government’s disingenuous conclusion was that any remedy should only apply to the handful of lawyers who appeared in court. Two weeks ago, on the last full day of the Obama administration, the government lost. The court ruled, “[a]t the very least, the Justice Department should, in an organized manner, require its attorneys to review and understand each state’s ethical rules before those attorneys appear in that state. This is a minimum requirement.”
Indeed, the court’s requirement is, if anything, too minimal and the Justice Department escaped by the skin of its teeth the Court’s more fulsome wrath from May. Commentators who previously administered Justice in prior Republican and Democratic administrations, however, suggest a more plausible, but still insufficient, reason for the misconduct: politicization at the Department of Justice. That should trouble everyone, regardless of party affiliation.
The federal government’s omission of facts that have “receded” or “lost focus” in the service of a legal victory for its current political masters must never be acceptable, minimized, or considered “normal” mistakes, regardless of their complexity. Current events show why. The most troubling aspects of Texas v. United States arose during the Obama administration. But headlines during the first weeks of the Trump administration reveal the political staying power of at least four horsemen: Executive Orders, judicial review, immigration, and administration representations. Politicization will undermine the validity of them all.
Mike Geske is counsel at Cause of Action Institute
02/26/2016
Florida Bankers Association: The Supreme Court Must Check IRS Abuse of Discretion
Today, Cause of Action Institute submitted an amicus brief to the U.S. Supreme Court urging it to grant a petition for certiorari to review the D.C. Circuit’s decision in Florida Bankers Association v. Department of the Treasury. The Court should take the case to ensure that IRS rules are subject to the proper judicial review, a much-needed check on the agency’s rulemaking discretion.
In August 2015, the D.C. Circuit ruled that the Anti-Injunction Act shielded the IRS rule at issue from judicial review. The Act requires taxpayers to pay taxes first and sue later for a refund if they believe a particular rule is infirm. The rationale behind this rule is to protect government’s ability to generate a consistent stream of revenue without litigation slowing down that process. However, the rule at issue in Florida Bankers was simply a reporting requirement and the penalty attached to it is designed to ensure compliance, not generate revenue. Nonetheless, the IRS argued, and the majority of the divided D.C. Circuit panel agreed, that the Act applied to challenges to the reporting requirement as well. This argument directly conflicts with a unanimous Supreme Court decision from last term, Direct Marketing Association v. Brohl.
Cause of Action Institute’s amicus brief brought a unique perspective to the question. We revealed that although judicial review is an important part of constraining agency discretion, it comes at the end of a long rulemaking process and is especially important when an agency, such as the IRS, routinely defies established oversight procedures. The IRS is notorious for skirting numerous rulemaking procedures that help ensure both accountable and higher-quality rulemaking.
The IRS, for example, evades Executive Order 12,866, which requires agencies to submit significant rules to the White House Office of Information and Regulatory Affairs for pre-publication review. As Cause of Action Institute informed the Court in its brief, “Over the past ten years, the IRS has submitted only eight rules to OIRA for regulatory review and deemed only one of those rules significant. Those eight rules are less than one percent of the final rules the IRS published in the Federal Register over the same period.”
In addition to evading pre-publication review, the IRS also flouts the Administrative Procedure Act’s rulemaking requirements. Cause of Action Institute relied on University of Minnesota Law School Professor Kristin Hickman’s empirical research to show the Court that in “almost ninety-three percent of the cases she surveyed over a three-year period, ‘Treasury claimed explicitly that the rulemaking requirements of APA section 553(b) did not apply.’”
Effective and accountable agency rulemaking requires robust judicial review of agency authority, the process followed in promulgating rules, and the record upon which the rulemaking is based. Overextension of the Anti-Injunction Act undermines these important principles, and the Supreme Court should grant certiorari and reverse the D.C. Circuit.
Click here to read the amicus brief in its entirely.