Sunday, December 8, 2019

A Lawless President Asking to Be Impeached

      With the House of Representatives on the verge of drafting articles of impeachment, President Trump has tried to undermine the credibility of the Democrats' impeachment inquiry by complaining in effect that they have been gunning for him since the start of his presidency three years ago. He is right, but he has only himself to blame.
      Trump has been inviting impeachment since the very first day of his presidency by, for example, his open violation of the Constitution's Foreign and Domestic Emoluments Clauses. And now, even after getting wrist-slapped in the Russia investigation on foreign interference in the 2016 election and accused of obstruction, Trump recklessly abuses the powers of his office even more blatantly by actively seeking Ukraine's assistance in the 2020 election and stiff-arming the House impeachment inquiry.
      On the Emoluments Clause issue, Trump has argued in federal court litigation that arms-length patronage of Trump properties by foreign governments or domestic groups does not constitute a prohibited "emolument." With the cases still pending, judges in three cases have rejected that argument. Heedless of the issue, Trump has failed to divest himself of his interest in the Trump Organization and has done nothing to discourage foreign governments from trying to curry favor by patronize the Trump Hotel in Washington.
      The Emoluments Clause issue was one of five counts included in the first impeachment resolution against Trump introduced in what was then the Republican-majority House in November 2017. A dozen presidents before Trump had been named in impeachment resolutions — not just Johnson, Nixon, and Clinton — but no previous chief executive had been charged with impeachable conduct as early as his first year in office.
      That unacted-on resolution by six Democratic representatives also charged Trump with obstructing justice by firing FBI director James Comey to thwart the then-ongoing Russia investigation by special counsel Robert Mueller. Mueller's eventual report cited the firing of Comey along with other actions as evidence of obstruction, but Mueller bowed to Justice Department policy by declining to bring a criminal charge against the president.
      Having gotten away with a warning, a law-abiding president might have taken care to avoid any obstructive conduct later on. Trump chose instead to double down on obstruction by declaring the House impeachment inquiry unconstitutional and refusing to cooperate in any way. The House Intelligence Committee report released last week [Dec. 3] notes at page 28 that Trump is "the first president in the history of the United States to seek to completely obstruct an impeachment inquiry undertaken by the House of Representatives . . . " He did so, the report explains, by "instructing witnesses and agencies to ignore subpoenas for documents and testimony."
      Trump escaped mostly unscathed in the Russia investigation after Mueller's staff failed to find evidence of direct collusion between the Trump campaign and the Russian operatives who were carrying out Vladimir Putin's undisguised preference for Trump in the election. As with his obstructive conduct, Trump decided to double down on foreign interference in U.S. politics by directly soliciting "a favor" from the new Ukranian president  Volodymyr Zelensky in the now infamous July 25 telephone — specifically, an investigation into Trump's political rival, former vice president Joe Biden.
      Trump may sincerely believe that the telephone was "perfect," but hardly anyone — not even most Republicans — agrees. The telephone call, the House Intelligence Committee report notes at page 10, was "not an isolated occurrence, nor was it the product of a naive president." Trump, the report notes, was elected "with the benefit of an unprecedented and sweeping campaign of election interference undertaken by Russia in his favor."
      With most of the facts in the Ukraine investigation undisputed, Republicans and Trump apologists were left at last week's House Judiciary Committee hearing [Dec. 4] to argue that the record is incomplete and the move to impeach rushed. Jonathan Turley, the George Washington University law professor who served as the Republicans' expert witness at the all-day hearing, wrongly claimed that the Trump impeachment would be the fastest presidential impeachment in U.S. history.
      Even with the hearing in progress, reporter Emily Singer showed in an article for the progressive news site The American Independent that Turley's assertion was "demonstrably false." In fact, Andrew Johnson was impeached in 1868 just three days after the House started the process; Bill Clinton was impeached in 1998 75 days after the GOP-controlled House started the process. House Speaker Nancy Pelosi greenlighted the inquiry into Trump on Sept. 24, Singer noted — 71 days earlier.
      Turley spoke after three other constitutional law experts — Harvard's Noah Feldman, Stanford's Pam Karlan, and the University of North Carolina's Michael Gerhardt — all agreed that Trump has committed impeachable conduct. Turley's performance drew a negative review from one of his former students, but at week's end he had yet to apologize for his misstatement or to convincingly reconcile his support for impeaching Clinton two decades ago with his stance toward Trump today.
      In asking the House committee leaders to proceed with drafting articles of impeachment, Pelosi maintained on Thursday [Dec. 5] that Trump "gave us no choice." For a deeply divided country, the forecast for months ahead is more division, as Republicans in the Senate are challenged to act as "impartial" jurors in a constitutional test unlike any in previous U.S. history.

Sunday, December 1, 2019

Kavanaugh Lines Up With Anti-Regulatory Stance

      Supreme Court Justice Brett Kavanaugh steered clear of controversy when he used the Federalist Society's annual meeting last month [Nov. 14] as the forum for his first public appearance since his contentious confirmation a year ago. Less than two weeks later, however, Kavanaugh went out of his way in a below-the-radar Supreme Court case to advance a major conservative issue by calling for federal courts to expand their role in reviewing regulatory initiatives by federal administrative agencies.
      Kavanaugh fired his shot across the bow last week [Nov. 25] even as he joined in shelving a case, Paul v. United States, that asked the Court to give new life to the so-called nondelegation doctrine as a limit on administrative agencies' powers. The petitioner in the case, Ronald Paul, wanted the Court to invalidate decisions by three U.S. attorneys general to extend the federal sex offender registration law to sex offenders like himself convicted before the law was enacted in 2007.
      The Court rejected that argument in a similar case, Gundy v. United States, decided on June 20 by a splintered 5-3 majority without Kavanaugh's participation because it was argued before his confirmation. In his "statement
 respecting the denial of certiorari," Kavanaugh said he agreed with the decision not to hear Paul's case because it raised "the same statutory issue resolved last term in Gundy . . . ."
      Kavanaugh went on, however, to praise Justice Neil Gorsuch's dissenting opinion in Gundy and to call for considering Gorsuch's view in a future case. Kavanaugh's position creates a potential five-vote majority in favor of what would amount to a mini-revolution in judicial review of regulatory policy. Under Gorsuch's approach, federal courts would be expected to strike down regulations that go beyond "filling up details" in congressional statutes and instead embody "major policy decisions" properly for Congress to make.
      Political conservatives have long complained that federal regulators often go beyond their powers delegated by Congress to promulgate regulations that ought to be enacted if at all by elected representatives in Congress instead of unelected federal bureaucrats. Despite the long history of these complaints, the Supreme Court has invoked the nondelegation doctrine only twice to strike down federal regulatory initiatives in two decisions in 1935 that dealt with New Deal enactments under President Franklin D. Roosevelt.
      The defendants in Gundy and Paul argued that attorneys general under Presidents George W. Bush and Barack Obama had gone too far in issuing regulations that applied the Sexual Offender Registration and Notification Act (SORNA) retroactively to sex offenders convicted before it was enacted. The law included a provision instructing the attorney general to cover pre-Act offenders "as soon as feasible."
      In Gundy, Justice Elena Kagan wrote for a plurality for four justices to find that provision sufficient authority for the regulations to extend SORNA's registration requirements. Justice Samuel A. Alito Jr. provided the fifth vote for the decision in a limited concurring opinion that he used to call for reviving the nondelegation doctrine in a future case with a full nine-justice bench.
      Gorsuch was joined in his 33-page dissenting opinion by two other conservatives: Chief Justice John G. Roberts Jr. and associate justice Clarence Thomas. Gorsuch argued for a stronger approach to nondelegation issues to prevent what he called "delegation run riot," invoking Justice Benjamin Cardozo's oft-quoted phrase from one of the 1935 decisions.
      Kavanaugh praised what he called Gorsuch's "scholarly analysis" of the nondelegation doctrine in a four-paragraph opinion that traced Gorsuch's view to a concurring opinion written almost 40 years ago by then-associate justice William H. Rehnquist. Rehnquist provided the fifth vote in the Court's decision in Industrial Union Department v. American Petroleum Institute (1980) to strike down strict benzene exposure standards promulgated by the Occupational Safety and Health Administration (OSHA).
      The four moderate-to-liberal dissenters in that case complained that the four justices in the plurality struck down the OSHA regulation based on "the plurality's own views of proper regulatory policy." Ian Milhiser, a friend and colleague, channeled this critique in a sharply written column for the online news site Vox. Kavanaugh's opinion, Milhiser wrote, "shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power."
      From the opposite perspective, the libertarian commentator Damon Root hailed Kavanaugh's opinion in a short column for as evidence that the rookie justice "seems to have joined Gorsuch's campaign to put some judicial teeth into the nondelegation doctrine." Root called the development "welcome news." In his column, however, Milhiser warned that Gorsuch's approach, if adopted, would "severely weaken seminal laws such as the Clean Air Act and the Clean Water Act."
      Gorsuch took pains in his opinion to leave room for Congress to delegate fill-in-the-blanks power to regulatory agencies, for example, when based on specified factual findings. But the decisions he cited all struck down regulatory initiatives       for example, the regulations promulgated by the Food and Drug Administration (FDA) to limit marketing of tobacco products to minors.
      In his opinion, Gorsuch vigorously insisted on the need for important policy decisions to be made by the people's elected representatives. Yet his position would necessarily result in giving the five unelected Republican-appointed justices broad discretion to strike down regulations that run contrary to their political views. The irony is too thick to overlook.