Executive Orders - Part 2 Flashcards
Regulatory Agenda Day
- unrelated to EOs, but Prof mentioned in class that twice a year all federal agencies have to issue their semi-annual regulatory agendas
What happens if President promises to do something in an EO but doesn’t?
- essentially, you’re out of luck -> courts won’t get involved, as established in the Manhattan-Bronx case
Chamber of Commerce v. Reich - Facts
- D.C. Circuit, 1996
- Clinton EO 12954 - to ensure economical + efficient administration of federal government contracts, contracting agencies shall not contract with employers that permanently replace lawfully striking employees
-> i.e. no fed agency can contract with employers who permanently replace striking employees - Sec of Labor charged w/ implementing this -> issued final implementing regs
- Chamber of Commerce sues prior to promulgation of the regs (challenging the EO itself + seeking declaratory + injunctive relief)
- Prof noted all this goes beyond the box of Manhattan-Bronx (no longer just organizing White House, now dealing with pls rights as private actors)
Reich - Chamber’s Argument
- EO transgresses employer’s statutory right under NLRA to hire permanent replacements
- EO violates Procurement Act (which Pres was purporting to implement) b/c neglected to make findings ying order to savings in procurement costs
- EO violates Constitution b/c lack of presidential findings means if this were valid, Procurement Act would be an unconstitutional delegation of leg authority
- all challenging EO itself - regs had been promulgated by the time the case gets to DC Cir, but NOT by the time they filed suit
Reich - Cause of Action Issue
- gov argues Chamber can’t challenge EO b/c no cause of action under APA - Pres is not an agency, + regs weren’t promulgated at time of suit (if they had been, could’ve challenged the regs)
-> there is some discussion in case as to why bother challenging the EO instead of regs - Chamber wanted to wipe it off the map
Reich - Ruling + Reasoning on Cause of Action Issue
- Court holds that the EO can be challenged under non-statutory review
- Line of cases indicating that courts will ordinarily presume that Congress intends the exec to obey its statutory commands and accordingly that it expects courts to grant relief when an exec agency violates such a command
->McAnnulty
->Stark v Wickard
->Harmon v Bruker
->Leedom v Kyne - When exec acts ultra vires (beyond one’s legal power or authority) courts are normally available to reestablish limits on his authority
- Never held that lack of statutory COA is a per se bar to judicial review
- That exec’s action here is essentially that of the President does not insulate the entire exec branch from judicial review (review of legality can be obtained in suit against officers attempting to enforce the President’s directives)
Reich - Significance
- inherent judicial authority to review whether gov has violated somebody’s rights
- CAN challenge EOs where agency acts on it + violates statutory rights of someone in private sector
-> gov was arguing Pres not agency, vs. court winds up saying don’t cloak everything after Pres action in non-reviewability + actions of officials can be reviewed even after acting at behest of Pres
-> Prof did note some lingering q though of what would’ve happened if Pres was acting alone - note that Pres often try to insulate their EOs w/ boilerplate lingo saying doesn’t create/impact rights/obs + also include savings clauses saying needs to be consistent w/ laws
City and County of San Francisco v. Trump - Facts
- 9th Cir, 2018
- Trump issues EO designed to punish sanctuary cities
-> directed depts + agencies to employ all lawful means to enforce immigration laws (sounds like just within exec branch at first) but then said to withhold federal grants from “sanctuary jurisdictions” - EO did contain generic lingo about not affecting rights/obligations, + also included a savings clause
San Francisco - Youngstown
- “lowest ebb” (category 3) - Congress has said how the $ is to be spent, + Pres saying otherwise is a contradiction
San Francisco - Trump Args + Ct Responses
Overall attempt to wriggle out of the constitutionality issue - we didn’t mean it, don’t overread it, etc.
1 - we haven’t done anything yet + memo will influence how everything gets decided -> ct responds imminent + real enough that this doesn’t matter
2 - Trump admin claims it said in EO it wouldn’t do anything illegal -> ct says trusting them in this regard would be problematic, cycle of never being able to review it
3 - arg that this is just part of Pres’s bully pulpit -> no way to reconcile text w/ current law, can’t use bully pulpit to make legal threats
San Francisco - Ultimate Conclusion
- EO unconstitutional - Congress has spending power, not Pres. -> Pres must follow when Congress says how to spend $
Principles from the Cases Re When EOs Reviewable
- when conflict w/ statutory language (Manhattan-Bronx different than Reich)
- savings clauses in EO don’t preclude judicial review (San Francisco)
- court won’t allow Pres to stick something in EO + then claim unreviewable - always constitutional constraints
- reviewable if EO unambiguously commands action + that action is unambiguously unconstitutional
- Prof also noted APA waiver of sov imm gets applied a bit broadly in Reich
- Prof also noted some ambiguity around unreviewability of EOs though - gives exec. a bit more room in using this as a policy tool
Hirabayashi v. US - Facts
- SCOTUS 1943
- Pursuant to Exec Order 9066 promulgated by President in 1942 while US at war w/ Japan, Sec of War DeWitt promulgated order requiring all persons of Japanese ancestry to be within a designated military area btw 8 pm and 6 am
- Congressional response - doesn’t legislate the terms of the EO, but adds an enforcement mechanism for what Pres did in the EO
Hirabayashi - Ruling + Reasoning
- court punts on whether Pres would’ve had authority to issue the EO on his own
->don’t need to reach this q, bc technically not before them - Pres asserted big power + courts don’t like to make pronouncements on Constitution unless necessary -> they use Congress’s action to say there’s an out (Congress ratified this) - Conclude that it was w/in the constitutional power of Congress + Exec to prescribe this curfew order + its promulgation by the military commander involved no unlawful delegation of leg power
- Power to wage war successfully gives wide scope for exercise of judgment and discretion -> actions taken must be appraised in the light of the conditions on the ground (essentially, wonky - ct blames nat sec a bit but also some q of what ct thought would’ve happened if they hadn’t done this -> sort of framing it as Congress + Exec to get out of tougher q)
Hirabayashi - Questions Presented
1 - Whether restriction was an unconstitutional delegation by Congress of its leg power, and
2 - whether restriction unconstitutionally discriminated btw citizens of Japanese ancestry and those of other ancestries
Underlying q - whether, acting in cooperation, Congress + Exec have con authority to impose curfew restriction (court combos their authority to evade big Pres q)
