Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘executive orders’

Supreme Court upholds travel ban

The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.

The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.

Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.

Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”

Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.

The podcast above with Caleb Brown and Ilya Shapiro is at this link. Earlier here and here. Other views: Eugene Volokh, Ilya Somin. More: Roger Pilon.

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When Truman seized the steel mills

65 years ago this week President Harry Truman by executive order seized control of the U.S. steel industry, then facing a labor impasse. The Supreme Court didn’t let him get away with it, despite his lawyers’ claims that the emergency arising from the Korean War, then in progress, gave him inherent power to act in the national interest. The case of Youngstown Sheet & Tube v. Sawyer was to set an outer bound on Presidential power, which continues to be felt in cases to this day. I’ve got a write-up at Cato at Liberty.

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Fighting the last war, on courts and executive power

Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.

I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.

The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.

After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:

Judges rule all the time against the partisan side that appointed them.

And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.

We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.

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Great moments in headlines: “Obama warns Trump not to overuse executive orders”

“With about one month to go before he leaves office, President Barack Obama gave some exit interview-type advice to his successor Donald Trump: Don’t rely too heavily on executive orders.” [UPI on NPR interview] We already knew from his own famous 2014 proclamation that Mr. Obama has a pen and a phone, and now it seems he’s got a piquant sense of humor as well.

On a more serious note: it is sometimes suggested that Obama’s use of executive power is unexceptionably normal since he has averaged fewer executive order issuances per year than other recent presidents. But that is a thoroughly meaningless statistic, since it lumps together, say, renamings of public buildings with the imposition by fiat of broad legislation Congress has refused to pass. It’s a number that can readily be cooked, should a White House wish to do so, by taking pains to consolidate as single orders measures that otherwise would be signed individually, or by issuing directives under alternative formats such as presidential memoranda or, at the agency level, “Dear Colleague” letters. Much more about the malleability of the category in this USA Today December 2014 piece by Gregory Korte. E.g.: “President George W. Bush established the Bob Hope American Patriot Award by executive order in 2003. Obama created the Richard C. Holbrooke Award for Diplomacy by memorandum in 2012.”

Obama’s own 2014 description of his plans, and his White House’s stage-management of “We Can’t Wait” demonstrations in support of unilateral executive action, speak for themselves. P.S. Washington Post fact checker Glenn Kessler went over some of this ground in 2014.

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Could the White House be “tyrant-proofed”?

How would one go about “tyrant-proofing” the U.S. presidency, after years in which many were happy to cheer the expansion of White House power so long as the office was held by someone *they* liked? Key point in Ben Wittes’s 3-part series at Lawfare: the hardest to tyrant-proof are not the extraordinary and covert national security powers held by the chief executive, but the everyday powers over the Department of Justice and regulatory agencies [parts one, two, three].

More: Neither Donald Trump nor his progressive opponents have shown themselves loyal to the principle of the rule of law [John McGinnis, Liberty and Law] Nature of the Presidency lends itself to authoritarianism and despite retrenchment under Coolidge and Ike, that’s been the trend for a century or more [Arnold Kling] And quoting William & Mary lawprof Neal Devins: “A President Trump could say, ‘I’m going to use the Obama playbook’ and go pretty far.” [Marc Fisher, Washington Post] And: Tyler Cowen on FDR, McCarthy, the politics of the 1930s-50s, and “our authoritarians” versus “their authoritarians.”

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