Unanswered Questions About Public Corruption Prosecutions After O’Brien

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by William Fick

Case Focus

On April 21, 2017, the First Circuit Court of Appeals denied the government’s petition for rehearing of United States v. Tavares, 844 F.3d 46 (1st Cir. 2016) (“O’Brien”), leaving in place the published opinion that ordered judgments of acquittal and brought the Massachusetts Probation Department “patronage” prosecution to a close. While the Court found that the government “overstepped its bounds in using federal criminal statutes to police the hiring practices” of state officials, id. at 49, the Court actually decided the case on narrow grounds and left unanswered a key looming question in public corruption investigations: can federal authorities prosecute allegedly dishonest but purely “political” quid pro quo exchanges, where there is no allegation of corrupt personal gain?

The O’Brien indictment alleged that state Probation Commissioner Jack O’Brien and two co-defendant officials ran “a rigged hiring system that catered to requests from state legislators and others to employ and promote candidates for employment” in the Probation Department. The indictment did not allege that the defendants, career public servants, put a penny in their pockets or did anything illegal for personal gain. Nor did the government claim that the defendants hired unqualified candidates. Yet prosecutors charged that the defendants committed federal crimes because, in considering and sometimes acting on recommendations from legislators, they violated a policy obligation to hire the “most qualified” candidates and did so with the intent to influence the legislature.

The government recognized that it could not prosecute the defendants for depriving the public of the “intangible right to honest services.” Several years earlier, in Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court had limited “honest services” prosecutions to traditional bribery and kickback schemes and had warned against construing a criminal statute “in a manner that leaves its outer boundaries ambiguous and involves the federal government in setting standards of disclosure and good government for local and state officials,” id. at 402.

Instead, the government charged O’Brien and his co-defendants with conspiracy and racketeering based on predicate acts of mail fraud, bribery, and gratuity. The indictment alleged that rejection letters mailed to unsuccessful job candidates provided the jurisdictional “hook” for mail fraud. It further alleged bribery and gratuity in connection with the hiring of Representative Thomas Petrolati’s wife and employees recommended by Representative Robert DeLeo on behalf of other representatives at the time he was preparing to run for Speaker of the House and was allegedly seeking their votes. After a lengthy trial, the jury convicted the defendants on some of the mail fraud and gratuity charges.

In reversing the convictions and ordering judgments of acquittal, the First Circuit used broad language critical of the attempted reach of the prosecution: “This case involves state officials’ efforts to increase funding for their department through closed door arrangements with state legislators and other public officials. But not all unappealing conduct is criminal. As sovereigns, states have ‘the prerogative to regulate the permissible scope of interactions between state officials and their constituents.’” O’Brien, 844 F.3d at 54 (quoting McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016)). The decision also reiterated Supreme Court warnings about federal meddling in state government. See id. But the court actually decided the case under much narrower, longstanding elemental principles.

With regard to the mail fraud counts, the court found that the rejection letters at issue were not mailed “in furtherance” of the alleged scheme to defraud, as the statute requires. See id. at 59-61. The government had argued that “rejection letters in a corrupt hiring system . . . help to maintain a facade of a merit-based system.” Id. at 59. But the court found that the government “presented no evidence that would allow the jury to infer that the rejection letters in this case served this duplicitous purpose.” Id.

With regard to the gratuity counts, the court held that the “evidence as to the gratuities predicates does not show adequate linkage between the thing of ‘substantial value’ conferred by O’Brien (the jobs) and an ‘official act’ performed or to be performed.” Id. at 55. The “government cannot show the requisite linkage merely by demonstrating that the gratuity was given ‘to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.’” Id.

The O’Brien decision thus confirms the continuing vitality of basic elemental limits on mail fraud, bribery, and gratuity prosecutions. Not every incidental mailing in a fraud scheme can trigger federal prosecution under the mail fraud statute. Bribery and gratuity crimes require a clear connection between a specific “official act,” on the one hand, and a particular “thing of value” provided, on the other hand.

But the First Circuit’s decision did not directly address whether “personal gain” is required to sustain a public corruption case, nor did it establish any clear limits on federal criminal prosecution of political “horse-trading” among state and local officials. What would happen if the facts established the basic elements more clearly? Take, for example, an arrangement where “You vote for my funding bill and I vote for yours,” with a false denial of the deal contained in a mailing that more squarely is in furtherance of this arrangement? Untangling such questions will be left to future cases. The stakes are high because expansive federal investigations, as in O’Brien, can cast a chill over the State House, distracting and draining resources from legislators and their staffs for years.

William Fick, a founding partner of Fick & Marx LLP, was part of the trial team that defended Probation Commissioner Jack O’Brien.

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The Supreme Judicial Court’s Decision in Beacon Residential v. R.P. Gives Survivors of Domestic Violence Their Day in Housing Court

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by Julia Devanthéry

Case Focus

The link between domestic abuse and housing instability is undeniable; survivors often face housing loss as a direct result of abuse or find themselves homeless after fleeing violence. In an all-too-common scenario, a survivor lives with her abuser, but is not on the lease because the abuser intentionally withholds housing stability as a method of abuse. In those cases, survivors may have to choose between their safety and their housing if they decide to separate from their abusers. Now, however, under the Supreme Judicial Court’s (“SJC”) recent decision in Beacon Residential v. R.P., survivors of domestic violence—including those who aren’t on the lease and are alleged to be “unauthorized occupants” by the landlord—are allowed to intervene as of right in summary process cases under Mass. R. Civ. P. 24 (a)(2) if they claim an interest relating to the apartment subject to the eviction proceedings. Beacon Residential Management, LP v. R.P., SJC-12265, slip op. (Sept. 14, 2017). As a result, thousands of survivors across the Commonwealth, formerly excluded from summary process cases, will have a right to their day in Housing Court.

In Beacon, the proposed intervener testified that she was a survivor of domestic violence who lived with her abuser, who was her husband, and their children in a federally subsidized apartment that was leased in the husband’s name. Although she lived at the apartment, she testified that her abusive partner prevented her from being added formally to the lease. The landlord’s witness testified that the landlord’s policy was to give an “add-on” application to all who inquired and that if the survivor in this case applied, she would have been added so long as she qualified and the husband approved.  However, the survivor was not given an application when she asked for one; rather, she was told only her husband could add her to the lease.  He, she testified, refused to do so as a means of controlling her. When the mother obtained a G.L c. 209A restraining order against her husband (which required him to leave the shared home and awarded custody of the two children to her), the landlord immediately initiated eviction proceedings against the family based on the mother’s “unauthorized” status at the unit.

The abuser failed to attend the summary process trial and was defaulted.  The mother attended the hearing and filed a motion under Mass. R. Civ. P. 24 to intervene both as of right and permissively along with a proposed answer and jury claim. She argued that she had a defense to the eviction under the Violence Against Women Act (“VAWA”), which prohibits evictions of qualified applicants for public housing based on the applicant being a victim of domestic violence,  and G.L. c. 239, §2A, which prohibits retaliation against survivors who obtain restraining orders. The landlord opposed her intervention.  The Housing Court judge denied her motion to intervene based on a finding that she would not be able to prevail on her defenses at trial. The mother then filed a new motion to intervene on behalf of her children, which was also denied.

The SJC’s decision in favor of the mother makes clear that at the intervention stage, a trial court’s inquiry should be limited to whether the proposed intervener has stated a plausible claim to the property, and that the judge should not reach the merits of the underlying claim until the trial. Beacon, slip op. at 7-11. In this case, the Court held that the proposed intervener stated a plausible claim to the apartment under VAWA and G.L. c. 239, §2A, and therefore she should have been allowed to intervene on behalf of herself and the children. Id. at 11-17. While the Court stressed that intervention does not guarantee success on the merits, it unambiguously held that the standard should be broadly applied to allow intervention when a litigant claims an interest in the property at issue in the eviction case. Id. at 17. In the wake of this groundbreaking decision, a greater number of survivors will now have access to justice in the Housing Court, and an opportunity to fight to save their homes.

 

Julia Devanthéry is a Lecturer on Law at the WilmerHale Legal Services Center of Harvard Law School.     This article is an update of her recent article, Early Lease Termination Under G.L. c. 186, § 24: An Essential Escape Route for Tenants Who Are Facing Domestic Violence, Sexual Assault, or Stalking,  61 Boston Bar Journal (Summer 2017).  In the case discussed here, Ms. Devanthéry filed an amicus brief with the Supreme Judicial Court in support of the survivor.


Lessons from a Pioneer

starkeyby Carol A. Starkey

President’s Page

On June 22nd, I had the honor of presenting Massachusetts Supreme Judicial Court Justice Geraldine S. Hines with the Boston Bar Association’s Haskell Cohn Award for Distinguished Judicial Service. In her heartfelt and compelling address to the more than 120 people in attendance, what came through clearly was Justice Hines’ honest desire to bring about positive change, her sense of what is just and fair, a deep respect for the law and the judiciary, and her acknowledgement that there is still work to be done, or as she gracefully put it “still a fight to be fought.”

This struck me as a powerful way to approach many things in life, be it a career or a one-time project. Enter with an honest intent to improve something, stay mindful of what’s just and right, and avoid complacency. In looking back on my tenure as President through this lens, I’m proud of the innovative changes and the principled positions that the Boston Bar Association has put forth this year.

Almost a year ago, when I stepped into the role of 95th president of the Boston Bar Association, I reflected on the changing natures of both the city of Boston and the practice of law. At the forefront of healthcare and education for decades, our city is now also leading the nation in the technology, life sciences, and venture capital sectors, to the extent that global companies like GE are deciding that Boston is where they need to be. These constantly-evolving industries bring new legal issues and challenges, demanding that lawyers in all practice areas become more technologically proficient and industry savvy to remain competitive in today’s global economy. I saw it as not only an opportunity, but essential that lawyers who practice in these fields stay connected with what’s happening on the front lines.

That’s why I was thrilled to be leading the charge as the BBA developed a series of industry-specific conferences, such as life sciences, venture capital, higher education and cybersecurity, among others. Nearly 1,000 BBA members attended these events, a remarkable turnout for the first year. As a result, we saw BBA sponsor organizations grow significantly, as we still continue to find success in meeting the needs of both national and local firms and organizations through holding these major conferences.  And I am deeply gratified to share the news that planning for the second annual Life Sciences Conference – to be held on October 3rd – is well underway.

But as delighted as I was to focus the BBA on connecting lawyers with industry through producing larger, inter-disciplinary conferences during my term as BBA President, the end of 2016 brought a new set of challenges for all of us.  Beginning in November, on both the state and national level, we faced an ever-increasing political climate of uncertainty, fraught with ever-changing events that created general unrest amidst our most vulnerable populations.  In order to answer the immediate concerns of our members and organizational stakeholders, as BBA President,  I weighed in on legal matters that, we felt, as the leadership of the BBA, were strongly in the public interest and squarely within the mission of our organization.

Recognizing that we as lawyers are at our best when we are dealing with well defined issues and actual cases and controversies, we remained vigilant in ensuring that individual and due process rights remain valued and protected in the implementation of our laws. Our Law Day in the Schools program focused on teaching Boston Public Schools students the value of due process under the law. The BBA also continued its ongoing work with community partners to present“Know Your Rights” programs.

As deportation of immigrants residing in our cities and towns became a potential collateral consequence of involvement with our judicial system, the BBA’s Amicus Committee also took action.  Submitting an amicus brief in October of 2016, the BBA advocated for the Supreme Judicial Court to bring long awaited closure  to nearly 20,000 people impacted by the actions of former drug-lab chemist Annie Dookhan.

As a result of their convictions, these individuals faced a wide array of collateral consequences, including asignificant portion at risk for deportation.  The BBA’s amicus brief – urged the Supreme Judicial Court to vacate all outstanding drug convictions in which Dookhan was the primary or secondary chemist. The brief argued that this course of action, more than five years after the scandal first came to light, was necessary to protect the fairness and integrity of our criminal justice system, and we were extremely gratified to see this outcome achieved.

At the national level, the BBA joined the ABA and other bar associations across the country to voice opposition to the January 2017 Executive Order issued by President Trump on immigration, which targeted inhabitants of seven different countries for disparate treatment. For decades, the BBA has worked to ensure that individual and due process rights remain valued and protected as bedrock principles in the implementation of our laws.  And we have a long history of strong opposition to proposals which would use national origin, race, ethnicity, religion, gender, gender identity, sexual orientation, or other integral individual traits as the basis for discrimination in any form. This practice speaks to the heart of who we are as an organization of lawyers – to preserve access to justice for all of us – not just a few of us.

Following this statement of opposition, I was moved and inspired by the hundreds of members who raised their hands to help by attending one (or more) of the numerous immigration pro bono trainings that the BBA planned and hosted over the last six months. We then followed up on these concerns by submitting an affidavit in support of the lawsuit filed against the President’s Executive Order in federal court, along with the Massachusetts Attorney General and so many other bar associations and organizations.  And I have continued to follow this issue, along with many of you, as it has made its way through our judicial system to the United States Supreme Court.  Throughout my term as BBA President, never have I felt it was more important for all lawyers, but in particular bar leaders, to speak out and educate others on the importance of our Constitutional democracy’s reliance on an independent judiciary as one of this country’s three equal branches of government, as well as our country’s unwavering commitment to the Rule of Law.

And finally, I have spent much of this year working on criminal justice reform issues, and to ensure that funding for civil legal aid remains a budget priority.  I was honored to address the crowd of more than 700 attorneys at Walk to the Hill in January, and proud to make the case that legal aid generates a return on investment in the editorial pages of the Boston Globe. This fight, however, is very much one still to be fought, long into the future.

Eliminating the Legal Services Corporation – which remains on this administration’s federal budget chopping block despite strong advocacy from our state’s delegation – would have dire consequences for our nation’s most vulnerable people, including at-risk children, victims of domestic violence, and veterans. It would also have negative consequences for our nation’s bottom line.

If you’re interested in learning about the state or federal budget process, or just looking for tips on how to speak to your legislators about legal aid, please listen to the BBA’s policy podcast, Issue Spot, on SoundCloud, iTunes, or GooglePlay.

As the year comes to a close, I want you all to know that it has been a joy, an honor, and a truly life changing experience to serve as your President of the Boston Bar Association, particularly  during this challenging time in our country’s history.  I am proud of all that we accomplished this year, despite those challenges, but there is still so much work left to do.

I look forward to watching this great organization continue to innovate the practice of law,  advocate for those requiring access to justice, and always, always speak out for our Constitution and the Rule of Law.  I have every confidence in the capable leadership of my friend and former colleague, Mark D. Smith.  I know that under Mark’s leadership, the BBA will carry on its important work with great compassion, integrity and practicality, just like the man at the helm.

So I will be soon saying my goodbyes, but to quote Justice Hines one last time, I promise to continue “The fight to be fought. Off I go!”

Carol A. Starkey is the president of the Boston Bar Association. She is a partner at Conn, Kavanaugh, Rosenthal, Peisch & Ford. 


Changing the Culture: Making Civil Litigation Reform Work Through Superior Court Rule 20 and Standing Order 1-88(F)

starkeyby Hon. Douglas H. Wilkins

Voice of the Judiciary

The Courts are committed to the “just, speedy, and inexpensive determination of every action.”  Mass. R. Civ. P. 1.  Hopefully, that does not come as a surprise.  I fear, though, that many lawyers, parties and clients assume that there is little or nothing they can do about a “system” they may perceive as inflexible, expensive and inefficient.

Not so.  With leadership from Chief Justice Gants, the trial courts have adopted new rules and initiatives, effective this year, to reform the civil justice system.  The goal is to make the courts more responsive to user needs, less expensive, more efficient, less time-consuming, and a superior forum for resolving disputes as compared to, for instance, arbitration.

In the Superior Court, lawyers, parties and clients must play a central role, if our reforms are to work.  Effective January 1, 2017, Superior Court Rule 20 and a Pilot Project for case management conferences (Standing Order 1-88(F)) give them significant input into scheduling, timing of settlement and ADR, eliminating unnecessary steps, streamlining discovery and trials, and addressing other common sources of delay.  Those initiatives reflect the work of an ad hoc committee, which included a cross-section of bar members, law professors and judges, chaired originally by now-retired Superior Court Judge Raymond Brassard and now by Superior Court Judge Bruce Henry.

Adopting these rules was the easy part.  Implementation is harder.  We realize that we are trying to change the culture.  For some reason, when I talk to bar groups, I hear mixed messages.  For instance, there seems to be a desire for more Rule 16 case management conferences, but a reluctance even to request them.  Apparently, there is a sense that judges won’t grant a Rule 16 conference; or that making the motion requires substantial motion practice, instead of simply asking for the conference.  If my assessment is correct, then both the bench and the bar – perhaps with urging from clients and insurers – may want to rethink some of the existing assumptions and “traditional wisdom” about what other participants in the system are thinking.  General counsel and other in-house counsel of any public or private entity that finds itself regularly involved in litigation also has a significant interest in reducing costs by asking trial counsel to use these new rules.

We have tried to make it as easy as possible for lawyers and parties to do so. A standard Rule 20 motion appears, in a fillable PDF, on the Superior Court’s web site.  The motion may be joint or contested.  You don’t have to think up (or fight about) an agenda; the form motion already contains one.  Notices for Pilot Project case management conferences are already being sent by court clerks in employment, real estate, construction, products liability cases and, upon request, in other case categories.  Preparation for these case management conferences includes filling out a case management report (Standing Order 1-88, Appendix A) and exchanging a demand and response.

The forms and Rule 20 itself list a wide and self-explanatory menu of options, too long to discuss in this article.  The nature and benefits of most of these options are probably self-explanatory.  If the Court approves an individual track (schedule) for your case, then the one-size-fits-all deadlines of Standing Order 1-88 no longer apply to that case.  See Amended Standing Order 1-88(B)(2) (“Individual Track”)

It may be useful, though, to mention one option that can address a common concern – issuance of written findings in bench trials.  The current process starts with a potentially costly and time-consuming need for the parties to prepare detailed proposed findings of fact.  After the trial, the parties often ask to submit additional findings to conform to the evidence. That takes more lawyer hours and additional time. The judge may need significant time to issued detailed findings, particularly where exhibits and testimony are voluminous and a transcript is not immediately forthcoming.  All the while, the judge is probably ready to decide the case at the close of the evidence.  And yet, the detailed written findings required by Rule 52(a) often are not worth the expense, effort and delay.  Unless there is some actual need for detailed written findings for appeal purposes (or otherwise), the parties will save significant legal expense by having the judge issue a decision in a form that is the same or similar to the “verdict slip” in a jury trial, perhaps after a conference to specify the rules of law the judge will apply.

Superior Court Rule 20(h) tries to address these problems.  It allows the parties to agree to waive detailed written findings, in which case Superior Court Rule 1-17 requires the judge to issue the equivalent of a special jury verdict.  At the same time, these rules recognize the parties’ right to complete Rule 52(a) written findings if they wish.  You will be seeing this option offered in new standard forms for final pretrial conferences and in the standard pretrial order for jury-waived cases.  The parties can also explore this option during pilot project case management conferences.

This example illustrates a larger point.  The current time standards were adopted in 1988 as Standing Order 1-88.  While there have been some amendments since then, the basic tracking order deadlines still set standards by case category.  Standard deadlines have worked well to reduce the huge backlog that existed 30 years ago.  The time has come, however, to customize case management and avoid unnecessary costs and delay that standardization can cause.

Lawyers frequently ask me whether judges will be receptive to Rule 20 motions to change existing tracking orders.  Will judges seriously entertain requests for case management and settlement conferences and actually consider reasonable limitations on motions, discovery and the like?  I know that some will.  In fact, in April, 2016, the Superior Court judges unanimously adopted the very rules that contemplate those motions and requests.  It is also true that the past few years have seen an unusually high number of new Superior Court appointees, whose views and practices may not conform to past assumptions about case management from the bench.  To be sure, the rules respect the discretion of individual judges to make the ultimate decision, so there will be individual variation in rulings on motions and requests.  But it can’t hurt to ask.

Judge Wilkins is an Associate Justice of the Superior Court, Chair of the Superior Court Rules Committee, and a Member of the Superior Court Ad Hoc Committee on Civil Litigation Reform.


Sanctuary Cities: Distinguishing Rhetoric from Reality

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by Inez Friedman-Boyce, Jennifer Luz, Sarah J. Fischer, Alexandra Lu, and Louis L. Lobel

Legal Analysis

Less than a week after his inauguration, President Trump signed Executive Order No. 13,768 (“Order”), threatening to “crackdown on sanctuary cities that refuse to comply with federal law and that harbor criminal aliens” by cutting off federal grant money.[1] This article examines the current political and legal landscape affecting sanctuary cities and the policies that define the “sanctuary city” designation.[2]

What Is A “Sanctuary City”?

There is no single, legal definition of a “sanctuary city”; rather, the designation refers generally to cities and counties that have policies—whether formally or informally adopted—that are intended to further public safety by mitigating against any deterrent effects that immigration status might have on residents’ cooperation with local law enforcement officials and by distinguishing between local police and federal immigration officials. Studies that inform sanctuary policies indicate that victims of and witnesses to crimes are less likely to come forward to report and assist with the investigation and prosecution of crimes if they fear deportation as a possible result.[3] Despite some variation, sanctuary cities share the common policy objective: to build community trust in order to “promote public safety and confidence in local law enforcement.”

What Are Sanctuary Policies?

Sanctuary policies differ across jurisdictions to accommodate local needs and priorities. Some have written policies that expressly prohibit police from inquiring about immigration status or direct local law enforcement not to comply with civil detainer requests by the U.S. Immigration and Customs Enforcement (“ICE”) to hold noncitizens for up to 48 hours to provide ICE agents extra time to take them into federal custody for deportation purposes. Others identify as sanctuary cities but have no written policies. Florida’s Miami-Dade County’s policy, until recently, was to refuse detainer requests except where the suspect had been charged with a non-bondable offense or had previously been convicted of a violent felony. Meanwhile, California’s Santa Clara County refuses to honor all detainer requests.

Several Massachusetts communities have sanctuary policies that limit local police cooperation with ICE, including Arlington, Boston, Cambridge, Chelsea, Holyoke, Lawrence, Newton, Northampton, and Somerville. Chelsea declared itself a sanctuary city in June 2007, adopting a policy that “immigration status (or lack thereof) … is not and shall not be a matter of local police concern or subsequent enforcement action by the [Chelsea Police Department] unless there exists through reliable and credible information a potential threat to public safety and/or national security.”[4] The policy only governs civil immigration matters and does not prohibit Chelsea Police from assisting with criminal matters. Lawrence adopted its Trust Ordinance in August 2015 “to increase public confidence in Lawrence Law Enforcement by providing guidelines associated with federal immigration enforcement, arrests, and detentions.”[5] Pursuant to the Ordinance, Lawrence police will not detain an individual based solely on an immigration hold or administrative warrant—or absent a warrant signed by a judge and based on probable cause—but will allow ICE officers with criminal warrants to use their facilities.

Since Trump’s election, more Massachusetts communities have galvanized to consider “sanctuary city” status. The Massachusetts Legislature also is considering a state-wide sanctuary policy, the Safe Communities Act, which would prohibit, inter alia, the use of state and local law enforcement resources or the Massachusetts Registry of Motor Vehicles record-keeping system for immigration enforcement purposes, and the arrest or detention of individuals solely on the basis of civil detainer requests or administrative warrants.[6] Police would not be prevented from pursuing immigrants who commit crimes subject to applicable federal laws and constitutional standards. Because sanctuary policies have broad support across the Commonwealth, two exceptions have attracted disproportionate press attention: in January 2017,the Republican sheriffs of Bristol and Plymouth County each signed agreements with ICE to deputize their correctional officers to detain individuals for immigration violations under Section 287(g) of the Immigration and Nationality Act.

The Order

On January 25, 2017, President Trump signed the Order entitled “Enhancing Public Safety in the Interior of the United States.” By its plain language, the Order threatens “all Federal grant money” received by “sanctuary jurisdictions.” The Order includes several internally inconsistent and ambiguous definitions of sanctuary jurisdictions. Section 1 defines “sanctuary jurisdictions” as those that “willfully violate Federal law in an attempt to shield aliens from removal.” Section 9(a) defines the term more broadly as jurisdictions that “willfully refuse to comply with 8 U.S.C. § 1373” (“§ 1373”), which states that “a Federal, State, or local government entity or official may not prohibit or in any way restrict, any government entity or official from sending to, or receiving from, the [INS] information regarding the citizenships or immigration status, lawful or unlawful, of any individual,” “or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Section 9(b) orders a retroactive identification of sanctuary jurisdictions based on a list to be publicized weekly including “any jurisdiction that ignored or otherwise failed to honor any detainers.” The Order also gives the Secretary of the Department of Homeland Security (“DHS”) unfettered “authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.”

The impact of the Order was felt immediately nationwide, with reports of decreased utilization of police, health, and social services by immigrant communities. And cities that had enacted sanctuary policies in effort to address the very fear and community distrust the Order has revived are now faced with deciding between prioritizing community safety or abandoning their sanctuary policies to avoid potentially losing critical federal funding. In letters dated April 21, 2017 sent to nine jurisdictions, the Department of Justice (“DOJ”) demanded proof of compliance with § 1373, coupled with the threat of terminating certain grants. Confronted with the Order, some jurisdictions, including Miami-Dade County, Florida and Dayton, Ohio  rescinded their sanctuary policies,[7] and other cities like Quincy, Massachusetts, have declined to adopt a proposed policy. Yet other communities chose to fight back, declaring that challenging the Order is “just as much about protecting residents as it is about protecting federal resources.”

Legal Challenges to the Order

On January 31, 2017, San Francisco filed the first lawsuit challenging the constitutionality of Section 9(a) of the Order, which states: “jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary [of Homeland Security].” Other suits quickly followed by Santa Clara County and Richmond in California; Chelsea and Lawrence, Massachusetts; and Seattle, Washington.[8]  Santa Clara, consistent with its long-standing position that it does not comply with § 1373, asserted only constitutional arguments, but the remaining jurisdictions sought declarations they complied with § 1373 and therefore were not “sanctuary jurisdictions” subject to the Section 9(a) sanctions.

These cases assert the following constitutional challenges to the Order:

·       violation of the separation of powers doctrine (legislates a penalty and imposes new conditions on federal grants that only Congress can authorize and impermissibly refuses to spend funds already appropriated by Congress);

·       void for vagueness under the Fifth Amendment (fails to specify the prohibited conduct that would subject the local jurisdiction to defunding, includes no guidance on what constitutes a “sanctuary jurisdiction” subject to penalties, and has “expansive standardless language” open to arbitrary and discriminatory enforcement);

·       violation of procedural due process under the Fifth Amendment (jeopardizes local jurisdictions’ entitlement to money appropriated by Congress without administrative or judicial procedure);

·       violation of the spending clause of the Tenth Amendment (imposes, without notice, vague conditions after funds have already been accepted, with no nexus between the federal funds threatened and the Order’s purpose, and uses coercive financial inducements); and

·       violation of the principles of federalism and state sovereignty under the Tenth Amendment (compels local jurisdictions to administer or enforce federal immigration policies and programs through coercion, and may subject cities to Fourth Amendment liability; imposes a blanket restriction on local policymaking discretion regarding how to treat immigration status of residents and a specific restriction on the regulation of law enforcement priorities and policies to address the best interest of residents).[9]

On April 25, 2017, Judge William H. Orrick III of the Northern District of California ordered a nationwide preliminary injunction against enforcement of the Order’s defunding provision in the Santa Clara and San Francisco cases. Judge Orrick rejected the DOJ’s arguments that: (1) the claims were not “prudentially ripe” because the harms are too contingent, and the DOJ and DHS have not determined the terms of the Order, (2) there was no loss of funds or cognizable harm because neither Santa Clara nor San Francisco had been named “sanctuary jurisdictions” pursuant to the Order, (3) the Order did not change existing law, as it would be enforced only “to the extent consistent with the law,” (4) it was restricted to three DOJ and DHS “grants that are already conditioned on compliance with § 1373,” and (5) it was therefore “merely an exercise of the President’s ‘bully pulpit’” that “highlight[ed] a changed approach to immigration enforcement.” Judge Orrick wrote: (1) “[t]here is no doubt that Section 9(a), as written, changes the law” and “purport[s] to give the Secretary or Attorney General the unilateral authority to alter [§ 1373],” a power reserved to Congress, and (2) standing is established “by demonstrating a well-founded fear of enforcement and a threatened injury that is ‘sufficiently real and imminent,’” and Santa Clara and San Francisco, are likely to be designated “sanctuary jurisdictions” under the Order given their policies, and withdrawing review would result in hardship that is more than financial loss. Further, Judge Orrick found a high likelihood of success on the merits of the constitutional claims, that there was impending irreparable harm based on budgetary uncertainty and constitutional injury, and that the balance of equities and public interest squarely tips in favor of the injunction. Finally, Judge Orrick found “a nationwide injunction is appropriate” because the constitutional violations had nationwide consequences.

The Chelsea and Lawrence Lawsuits

On February 8, 2017, Chelsea and Lawrence filed their complaint, challenging the Order on the previously discussed constitutional and declaratory relief grounds. Their motivation in filing suit underscores what is at stake for many sanctuary cities nationwide.[10] Simply put: “[i]t is impossible [for a sanctuary city] to create a budget when it is unclear what effect the Executive Order will have on its funding.” The crippling consequence is especially stark in communities like Chelsea and Lawrence. Chelsea is a working-class city where over 60% of its residents identify as Hispanic or Latino, over 40% are foreign-born, and over 20% live below the poverty level with a per capita income of $21,722.00. Chelsea counts on the federal government for about 10%, or $14 million, of its $170 million annual budget. Similarly, Lawrence is a working class city where over 70% of its residents identify as Hispanic or Latino, over 35% are foreign-born, and over 25% live below the poverty level with a per capita income of $17,167.00. Lawrence counts on the federal government for over 15%, or $38 million, of its $245 million annual budget. The Order threatened large portions of these impoverished cities’ budgets because of policies they deemed necessary for their communities’ public safety. In early May, while the DOJ’s motion to dismiss was pending, Judge Orrick’s national injunction issued; the DOJ and Chelsea and Lawrence subsequently agreed to a stay, pending resolution of the injunction.

Where We Are Now

On May 22, 2017, Attorney General Sessions issued a “Memorandum on the Implementation of the Executive Order” (“Memo”), codifying arguments advanced by the DOJ at the preliminary injunction hearing. Relying on the Memo, in late May, the DOJ moved for reconsideration of the nationwide injunction in the San Francisco and Santa Clara cases. The DOJ then filed motions to dismiss on procedural and substantive grounds in the San Francisco, Santa Clara, Richmond, and Seattle cases. On July 20, 2017, Judge Orrick issued an order denying the motions for reconsideration and motions to dismiss in the Santa Clara and San Francisco cases, finding that the Memo did not impact his prior conclusion regarding standing, ripeness, and likelihood of success on the merits. Additionally, he concluded that San Francisco had stated a claim for declaratory relief.

Conclusion

While a nationwide preliminary injunction has been entered, many questions remain. The interplay between federal and state law regarding ICE detainers remains unclear; the constitutionality of § 1373 is still undecided; and future federal actions against sanctuary cities remain real possibilities. The Memo, purporting to narrow the definition of “sanctuary jurisdictions” and limit the sources of federal funding that are threatened by the Order, is arguably inconsistent with the terms of the Order itself, does not have the force of law, and is subject to change. It remains to be seen to what extent local policy makers are able to prioritize public safety over federal immigration enforcement without jeopardizing critical federal funding.

[1] Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017). Joseph Spector Cities Back Lawsuit to Block Immigration Order, USA Today, Feb. 17, 2017.

[2] See Benjamin Gonzalez, Loren Collingwood, Stephen Omar El-Khatib, The Politics of Refuge: Sanctuary Cities, Crime, and Undocumented Immigration, Urban Affairs Review, May 7, 2017.

[3]For example, one study found that 70% of undocumented immigrants and 44% of Latinos are less likely to contact law enforcement if they are victims of a crime for fear that the police will ask about immigration status, and 67% of undocumented immigrants and 45% of Latinos are less likely to report crimes because of the same fear. See Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (Dep’t of Urban Planning and Policy, Uni. of Ill. at Chicago, Chicago, IL), May 201, at 5-6.

[4] Chelsea, MA, Resolution of the City of Chelsea, Massachusetts (Jun. 4, 2007).

[5] Lawrence, MA, Lawrence Trust Ordinance, Chapter 9.20 (June 8, 2015).

[6] S.1305 and H.3269, 190th Gen. Court of the Commonwealth of Mass. (Mass. 2017).

[7] As Mayor Carlos Giménez of Miami-Dade explained, “It’s really not worth the risk of losing millions of dollars … in discretionary money from the feds.” Ray Sanchez, Florida’s Largest County to Comply with Trump’s Sanctuary Crackdown, CNNpolitics, Updated Jan. 27, 2017.

[8] City and County of San Francisco v. Trump et al., 4:17-cv-00485-DMR (N.D. Cal. Jan.31, 2017), County of Santa Clara v. Trump et al., 5:17-cv-00574-LHK (N.D. Cal. Feb. 3, 2017); City of Chelsea, et al. v. Trump, et al., 1:17-cv-10214-GAO (D. Mass. Feb. 8, 2017); City of Richmond v. Trump et al., 3:17-cv-01535-SK (N.D.Cal. Mar. 21, 2017); City of Seattle v Trump et al., 2:17-cv-00497-BAT (W.D. Wash. Mar. 29, 2017), The San Francisco, Santa Clara and Richmond, California cases have been related before Judge William H. Orrick, III.

[9] See, e.g., Creedle v. Gimenez, et al., 1:17-cv-22477 (S.D. Fl. filed on Jul. 5, 2017); Commonwealth v. Lunn, SJC-12276 (decided July 24, 2017) (holding federal civil detainers unconstitutional under Massachusetts Constitution).

[10] Elizabeth Ross, How Can “Sanctuary Cities” Resist Trump? This Lawsuit Could Provide a Blueprint, Public Radio International, Updated Apr. 12, 2017.

Inez Friedman-Boyce is a partner, Jennifer Luz is counsel, and Sarah Fischer, Alexandra Lu, and Louis Lobel are associates at Goodwin Procter LLP. Ms. Friedman-Boyce is a past co-chair of the BBA Class Actions Committee and the current co-chair of the Lawyers’ Committee for Civil Rights and Economic Justice. Along with the Lawyers’ Committee, they are all counsel for the Cities of Chelsea and Lawrence in litigation pending in the U.S. District Court for the District of Massachusetts challenging President Trump’s sanctuary city executive order.


Executive Order: Strike of a Pen, Law of the Land?

starkeystarkeyby M. Patrick Moore and Kate R. Cook

Legal Analysis

Introduction

The President of the United States and the Governor of Massachusetts have the implied power to issue executive orders that, in certain contexts, will have the force of law. Focusing on the federal system and the Massachusetts state system, this article will address the concept of the executive order, how it has changed over time, and why executive orders are used to further wide-ranging policy goals. The article will also address the judicial scrutiny of executive orders, including, in particular, whether they are owed any deference or presumption of lawfulness.

Discussion

Throughout history, executive orders have addressed issues of profound national and local importance. Our system of classifying national security information, for example, is set by executive order. See Exec. Order No. 13526 (Dec. 29, 2009). So, too, is the process by which national security agencies determine who may have access to such information. See Exec. Order No. 13764 (Jan. 17, 2017); see also 50 U.S.C. § 3161 (instructing the President to issue such an order). Executive orders define the process by which nearly every federal and state agency may regulate. See generally Exec. Order No. 12291 (Feb. 17, 1981) (centralizing federal regulatory planning and review); Mass. Exec. Order No. 562 (Mar. 31, 2015) (synthesizing state regulatory review). And they provide the definition of an unfunded mandate, at least at the local level. Mass. Exec. Order No. 145 (Oct. 21, 1978). Executive orders have both advanced principles of equal protection and hindered them. See Exec. Order No. 9981 (July 26, 1948) (desegregating the armed forces); Exec. Order No. 10450 (Apr. 27, 1953) (excluding gay and lesbian officials from government service during all administrations from Eisenhower to Clinton); Exec. Order No. 12968 (Aug. 2, 1995) (establishing that the federal government no longer will “discriminate on the basis . . . [of] sexual orientation in granting access to classified information”).

Despite the importance of executive orders, neither the United States nor the Massachusetts Constitutions expressly grants the power to issue them. Rather, the power is implied from the executive’s core authority to administer the laws. See U.S. Const. art. II (“The executive Power shall be vested in a President . . . .”); id., art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”); Mass. Const. pt. II, ch. 2, § 1, art. I (“There shall be a supreme executive magistrate, who shall be styled, the Governor of the Commonwealth of Massachusetts . . . .”). The scope of that power has been, and continues to be, the focus of significant debate. In this article, we focus on the legal framework of that ongoing debate.

The Supreme Court tells us that history is an important guide to the scope of executive power. See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014). On that score, the record is clear. Dating back to President Washington, each President has interpreted his executive power to encompass the authority to issue executive orders. See Phillip J. Cooper, By Order of the President: Administration by Executive Order and Proclamation, 18 Admin. & Soc’y 233, 236 (1986) (describing Washington’s use of executive orders and proclamations). Massachusetts Governors likely have exercised the same power for just as long, though Governor Saltonstall (who served from 1939-1945) was the first to track the orders formally. See Mass. Legis. Research Council, Report Relative to Gubernatorial Executive Orders, submitted as 1981 House 6557, at 22 (1981) (“Mass. H. Rep.”).

Historically, the number of presidential and gubernatorial executive orders peaked during periods of national emergency and war, most notably the Civil War, World War I, the Great Depression and World War II. See Cooper, supra, at 236-37. Governor Saltonstall, for example, began issuing a disproportionately high number of orders at the outset of World War II. See Mass. H. Rep. at 22, 80. No executive, however, used the authority with such regularity as President Franklin Roosevelt, who issued 567 orders in 1933 alone and a total of 3,727 orders before his death in 1945. See Cooper, supra, at 237. President Roosevelt averaged nearly 285 executive orders per year—a trend that increased steadily through the conclusion of World War II. See John Contrubis, Cong. Research Serv., Rep. No. 95-772, Executive Orders and Proclamations, at CRS-25 tbl.1 (1999). Since his administration, no President has averaged more than 78 per year. Id; Tara L. Branum, President or King? The Use and Abuse of Executive Orders in Modern Day America, 28 J. Legis. 1, 27-29 (2002).

Perhaps as a result of the constitutional silence on the issue, there is no codified definition of an executive order. The most commonly referenced definition is set forth in a 1957 report from a committee of the U.S. House of Representatives. It reads, in pertinent part: “Executive orders . . . are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law. . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly.” H. Comm. on Gov’t Operations, 85th Cong., Executive Orders and Proclamations: A Study of a Use of Presidential Powers 1 (1957); see also Vivian S. Chu & Todd Garvey, Cong. Research Serv., RS20846, Executive Orders: Issuance, Modification, and Revocation (2014); see generally Contrubis, supra. Massachusetts law similarly lacks a statutory definition of executive order, though the Supreme Judicial Court has recognized such orders as the “formal” exercise (or delegation) of powers granted to the Governor by the constitution or the legislature. See Opinion of the Justices, 368 Mass. 866, 874-75 (1975).

Regarding the substance and reviewability of executive orders, policymakers and courts alike are guided by the three categories set forth in Justice Robert Jackson’s seminal concurrence in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). That case famously involved President Truman’s attempt to seize most of the nation’s steel mills to quell labor unrest during the Korean War, which Truman attempted to accomplish via executive order directing the Secretary of Commerce to take possession of and operate the mills. Id. at 583. In analyzing Truman’s order, Justice Jackson set forth three “practical situations in which a President may doubt, or others may challenge, his powers.” Id. at 635.

Though Justice Jackson described the “three practical situations” as “over-simplified,” they continue to be the benchmarks against which the exercise of executive power is measured. Id. at 635-38. First, when acting with express or implied legislative authorization, the executive exercises both the power vested in the executive and the authority of the legislature, and the executive’s actions are presumed valid. Second, when the executive acts in the “zone of twilight” defined by legislative silence or inaction on the issue, executive authority will be addressed on a case-by-case basis. Third, when the executive contravenes legislative action, the executive’s action is presumptively impermissible. Id. at 637-38.

The most common executive orders fall into the first category, i.e., action where the executive is expressly authorized to act. Such orders are generally directed to, and govern actions by, government officials and agencies. The reason is simple. Executive orders are not self-executing; most exist against the backdrop that an executive official who fails to comply with the order will be removed. See generally Myers v. United States, 272 U.S. 52 (1926). The majority of executive orders pertain to internal matters of government administration, the creation of task forces, and the commissioning of reports. Typically, the order will set forth clearly the basis of its authority. Cf. 1 C.F.R. § 19.1(b) (2017) (“The order or proclamation shall contain a citation of the authority under which it is issued.”).

Though the legal framework is routine, the subject matter of such orders is often rich and significant. On the state level, for example, the Governor is expressly afforded the constitutional authority to nominate and appoint judges. See Mass. Const. pt. II, ch. 2, § 1, art. 9. In 1975, Governor Dukakis established the Judicial Nominating Commission (JNC) by executive order, on the theory that the “high quality of judicial officer appointments can be best assured by the use of a non-partisan judicial nominating commission composed of outstanding laymen and lawyers.” Mass. Exec. Order No. 114 (Jan. 3, 1975). The Supreme Judicial Court upheld the Governor’s authority to create the JNC by executive order, which established “formally and publicly” the “enlist[ment] [of] such aid as he deems necessary to investigate the availability of qualified candidates for judicial office.” Opinion of the Justices, 368 Mass. 866, 874-75 (1975). Though each successive Governor has slightly revised the JNC, the tradition of a formalized nominating process continues.

Even where the executive has acted pursuant to an express grant of authority, however, there are checks. For example, when President Trump established his most recent travel ban, see Exec. Order No. 13780 (March 6, 2017), he purported to act under his express statutory authority to bar the immigration of certain individuals he “finds . . . would be detrimental to the interests of the United States.” See 8 U.S.C. § 1182(f). Subsequent litigation has focused on whether President Trump actually made such a finding and, if he did so, whether it was improperly infected with religious considerations (in violation of the First Amendment) or was otherwise arbitrary (in violation of the Fifth or Fourteenth Amendments). See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017). The Supreme Court will hear these cases during the first session of October Term 2017. See Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (granting the Government’s petitions for certiorari, staying in part the lower courts’ injunctions, and holding that the Executive Order cannot be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States).

Executive orders in Justice Jackson’s second category, where the scope of executive authority is not well-defined, are evaluated on a case-by-case basis. A reviewing court will scour the Constitution and consider “all the circumstances which might shed light on the views of the Legislative Branch towards such action, including congressional inertia, indifference, or quiescence.” Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981) (internal quotation omitted). In Dames & Moore, the Supreme Court analyzed a series of executive orders that extinguished American liens against Iranian property and barred claims against Iranian property in American courts. There, the Court recognized that a “‘long-continued [executive] practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of [legislative] consent.’” Id. at 686 (second and third alterations in original) (quoting United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915)). In other words, the absence of legislative disapproval following executive action on uncertain terrain will be a relevant consideration. Id. at 686-88.

Sometimes, particularly regarding long-standing executive orders, legislative approval is express. President Reagan’s Executive Order No. 12333, for example, established a framework for the collection of foreign intelligence. The order itself relied on executive authority granted “by the Constitution” and by the 1947 National Security Act which, most prominently, created the National Security Council but which contained no express delegation of authority to the President. The order remains in place and, reportedly, is the legal basis for much of the National Security Agency’s data collection. See Erica Newland, Executive Orders in Court, 124 Yale L.J. 2026, 2030 (2015). The order is now expressly referenced many times in the United States Code. Indeed, Congress even requires the regular reporting of any violations of the order. See 50 U.S.C. § 3110.

Executive orders in the third category, where the executive has acted in contravention of legislation, generally are not permitted. For example, the Governor may not seize facilities of the Massachusetts Bay Transportation Authority where such action is barred by the General Laws. See Mass. Bay Transp. Auth. Advisory Bd. v. Mass. Bay Transp. Auth., 382 Mass. 569, 578-79 (1981). Nor may the President bar a federal contractor that has hired permanent replacements for striking workers where the contractor is expressly afforded by federal law the right to hire such replacements. See Chamber of Commerce v. Reich, 74 F.3d 1322, 1338-39 (D.C. Cir. 1996).

Where executive orders are well-anchored in existing law, they can be attractive tools for policymakers, in part because of the minimal process associated with them. As a senior aide to President Clinton once quipped: “Stroke of the pen, law of the land. Kind of cool.” Tara L. Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J. Legislation 1, 1 (2002). Accordingly, an executive order may be an expeditious and tangible step towards accomplishing a policy goal. See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2300 (2001) (describing President Clinton’s use of “deliverables,” like announcing the issuance of an executive order, to advance his political agenda). Little is required of the executive other than publishing the order in the respective federal or state register. See 44 U.S.C. § 1505; G.L. c. 30A, § 6.

But the same qualities that make orders attractive can make them perilous, particularly where the subject matter strays beyond routine administrative or ceremonial purposes. Other types of executive action, most prominently including administrative rulemaking, include formalized stakeholder input before the action is finalized. The notice-and-comment regulatory process, for example, requires the executive branch to hear—and, where appropriate, address—stakeholder comments and concerns before a regulation is finalized. See 5 U.S.C. § 553; G.L. c. 30A, §§ 2-3. An executive order may be issued without such external input. Although robust internal legal and litigation risk analyses should be undertaken before an order is signed, that is a matter of practice rather than law. Compare 1 C.F.R. § 19.2 (setting forth typical process of Attorney General review), with Ryan Lizza, Why Sally Yates Stood Up to Trump, New Yorker (May 29, 2017) (noting that the Acting Attorney General first learned of Exec. Order No. 13768, President Trump’s first travel ban, from media reports).

Where an executive order that substantively affects the rights or property interests of stakeholders is issued, litigation is likely to follow, particularly where its legal foundation is uncertain or untested. Recent experience is illustrative. See, e.g., Int’l Refugee Assistance Project, 137 S. Ct. at 2088 (granting certiorari review of Exec. Order No. 13780, commonly referred to as the “travel ban”); County of Santa Clara v. Trump, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) (enjoining enforcement of Exec. Order No. 13768 regarding grant funding to so-called sanctuary cities on several constitutional grounds); cf. United States v. Texas, 136 S. Ct. 2271 (2016) (per curium) (equally divided court affirming Fifth Circuit decision invalidating Department of Homeland Security memoranda regarding deferred action on certain undocumented immigrants). As Justice Jackson teaches us, that is as it should be: “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution.” Youngstown, 343 U.S. at 638 (Jackson, J., concurring).

Conclusion

Executive orders can function as a formalized statement to the public regarding how executives intend to solve an administrative problem or discharge their duties. To withstand judicial review, executive orders must be rooted in constitutional or statutory authority and comply with the relevant constitution. Moreover, because executive orders lack the procedural protections that accompany administrative rulemaking and the deliberative process that shapes legislation, executive orders outside the obvious bounds of executive power deserve particular scrutiny.

Kate R. Cook is co-chair of the Boston Bar Association’s Civil Rights and Civil Liberties Section and Of Counsel at Sugarman Rogers.  She previously served as Chief Legal Counsel to Governor Deval Patrick, where she assisted in drafting numerous Executive Orders.

M. Patrick Moore Jr. is co-chair of the Boston Bar Association’s Government Lawyers Forum and Counsel at Hemenway and Barnes LLP. He previously served as Associated Counsel and Advisor for Presidential Personnel in the White House of President Barack Obama, and as Deputy Legal Counsel to Governors Deval Patrick and Charlie Baker. In those roles, he assisted in drafting, analysis and review of executive orders. 


The Administrative Law of Deregulation: The Long Road for the Trump Administration to Undo Obama-Era Regulations

lyonsby Daniel Lyons

Legal Analysis

Dysfunction among Washington’s elected branches has thrust the administrative state—the alphabet soup of federal agencies that together do the day-to-day work of governing the republic—into the nation’s political spotlight. Frustrated by his inability to get the Republican-led Congress to pass his legislation, President Obama governed by “pen and phone,” leaning on the administrative state to accomplish much of his second-term agenda. From immigration reform to transgender rights to climate change, agencies became the primary engines driving the White House’s policy agenda.

Unsurprisingly, President Trump has focused on undoing many of these agency initiatives. As a candidate, Trump campaigned on a platform of deregulation, arguing that agency regulations inhibit economic growth. And as president, he moved quickly to reverse certain Obama-era administrative initiatives and established agency-level task forces to identify others for repeal. White House advisor Stephen Bannon described these efforts as a fight for the “deconstruction of the administrative state.”

But how, precisely, can an agency conduct an about-face and reverse a policy decision that it only recently adopted? The answer is surprisingly complex, turning in part upon the way the agency formulated its policy and how long it has been in effect. The answer is also extremely important. Each year, agencies enact more rules than Congress and hear far more cases than the federal court system. Administrative process is the primary legal check on what is often called the “headless fourth branch of government.” The Trump administration’s deregulation campaign will withstand court challenges only to the extent that it gets agency process right.

Policy Statements

The easiest agency decisions to reverse are so-called interpretive rules and policy statements. These are agency statements that, in theory, create no new rights or responsibilities for regulated entities, but rather simply clarify what the agency currently believes that existing law already requires. Because these so-called “nonlegislative rules” do not change the law, they are exempt from the Administrative Procedure Act’s notice and comment process. As a result, agencies are generally free to issue or revoke these statements at will, subject only to the agency’s own procedures for doing so.

Perhaps the most high-profile interpretive rule in President Trump’s crosshairs was the Education Department’s guidance regarding transgender students. In January 2015, the Department of Education’s Office of Civil Rights issued an opinion letter explaining that under the agency’s regulations implementing Title IX, schools are permitted to separate bathroom facilities by sex, but “must treat transgender students consistent with their gender identity.” The agency followed this with a second letter, in May 2016, explaining that a student’s sex under the statute equates to his or her gender identity. The opinion letters had legal consequences. The Fourth Circuit deferred to the first letter in G.G. v. Gloucester County School Board, a 2016 decision reversing the dismissal of a transgender student’s suit for bathroom access.[1] Four months later, a federal district court in Texas enjoined the letter on the ground that it changed the law and therefore was not merely an interpretive rule.[2] In October 2016, the Supreme Court granted certiorari in Gloucester County.[3]

On February 22, 2017, the agency issued a new opinion letter that withdrew and rescinded the earlier two letters. It explained that the earlier letters “do not contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” The Supreme Court then vacated and remanded Gloucester County back to the Fourth Circuit to reconsider its decision in light of the new letter. In the meantime, several states including Massachusetts have stepped up to fill the void in transgender rights left by the agency’s most recent action.[4]

Recent Regulations: The Congressional Review Act

Regulations enacted during the final months of the Obama administration were susceptible to rescission via the Congressional Review Act, a 1995 law enacted as part of Newt Gingrich’s Contract with America to encourage greater legislative oversight of agency rulemaking.[5] The Congressional Review Act requires agencies to report to Congress whenever enacting a rule with a $100 million impact on the economy. Congress then has 60 legislative days to pass a joint resolution disapproving the rule. The Act provides expedited debate procedures, including a prohibition on filibusters. If both houses pass the resolution and either the president signs it or Congress overrides a presidential veto, the rule is voided and the agency is prohibited from issuing any rule “substantially the same” as the rejected rule.

In theory, the Congressional Review Act gives Congress greater oversight of agency action, restoring some of the power lost in INS v. Chadha[6] (which invalidated the legislative veto, a process that permitted the House or Senate to unilaterally invalidate certain agency action). But in practice, a successful joint resolution is exceedingly difficult to achieve, because absent a veto-proof majority, it requires the approval of the president, who is unlikely to agree to repeal one of his agencies’ major rules. In fact, prior to President Trump’s inauguration, the Congressional Review Act had been successfully deployed only once, to invalidate a 2001 Department of Labor ergonomics rule passed in the twilight moments of the Clinton administration and repealed shortly after President George W. Bush’s inauguration.

But the current Congress successfully passed, and President Trump signed, a record fourteen resolutions of disapproval.[7] One of the most far reaching of these was the voiding of the Department of the Interior’s Stream Protection Rule, which took effect on the final day of Obama’s term. The rule would have prohibited mining practices that adversely affected streams and water supplies and would have required mining companies to restore streams and mined areas such that they could support all uses that they could have supported prior to mining activities. Congress passed a resolution of disapproval in January 2017 and President Trump signed it on February 16. As a result, the agency reports, the rule was nullified and “the regulations that are now in effect are the same as those that were in effect on January 18, 2017,” the day before the new rule would have taken effect. The agency is “in the process of amending all the regulations altered by the Stream Protection Rule back to the form in which those regulations existed on January 18, 2017. When complete, these amendments will be published in the Federal Register.”

Older Regulations: Notice and Comment Rulemaking

Older regulations may be rescinded primarily via the notice and comment process outlined in the Administrative Procedure Act—the same process the agency went through to enact the regulation.[8] First the agency must promulgate a notice of proposed rulemaking, which usually includes an explanation why the agency seeks to take action and the text of the rule the agency proposes to adopt (but in the deregulatory posture, it could instead identify the text the agency proposes to delete). The agency then must invite public comment, which occurs in two rounds: an initial comment period and a reply comment period. After the comment period has closed, the agency must review the comments filed and will ultimately issue a final rule, which becomes binding after publication in the Federal Register (and expiration of the 60-day Congressional Review Act clock).

Deregulation via notice and comment rulemaking differs in two important ways from the other avenues discussed above, both of which can potentially derail the agency’s plans. First, the public has the opportunity to provide input into the agency’s process. One need not be a lawyer to comment on a proposed rule, including a proposal to rescind an existing rule. Most open agency proceedings are listed at www.regulations.gov, where one can file a comment by uploading a document or even simply by typing into a text box and pressing “submit.” This comment process is not merely window-dressing. By law, agencies must review and respond to these comments in its final rule. More specifically, while an agency need not address every point in every submission, it must respond to significant comments in a reasoned manner to show that the major policy critiques were considered by the agency.

Second, opponents can seek judicial review of the agency’s decision. Like all final agency action, a decision to revoke or modify an existing rule is subject to review under the Administrative Procedure Act’s “arbitrary and capricious” standard. In the deregulatory context, the touchstone case is Motor Vehicle Manufacturers Association vs. State Farm Insurance Co., in which petitioners challenged the Reagan administration’s rescission of a Carter-era rule mandating that cars contain either automatic seatbelts or airbags.[9] The Supreme Court explained that both adopting a new rule and repealing an existing rule change the legal baseline, and therefore in both cases the agency must “examine the relevant data and articulate a satisfactory explanation for its action.”[10] Furthermore, because repeal involves a reversal of the agency’s previous views on the issue, this explanation should include a discussion of why the agency had changed its position.

In State Farm, the Department of Transportation justified the repeal by arguing that, contrary to the agency’s original estimate that 60% of cars would have automatic seatbelts and 40% would have airbags, the agency now believed that over 99% of cars would choose the seatbelt option. And this was problematic because new studies showed that most Americans would deactivate the automatic seatbelts, meaning the regulation would not measurably improve automobile safety. The Supreme Court unanimously vacated this repeal because the agency failed to explain why it did not simply adopt an “airbags only” rule instead, which, from a safety perspective, would seem to be a logical response if automatic seatbelts were deemed ineffective. The Court explained that the agency could repeal the rule completely, but it had to explain why it chose that path rather than the other options that were on the table.

Learning from State Farm, the Trump administration is beginning the notice and comment process to repeal select Obama-era regulations. One of the first out the gate is the Federal Communications Commission’s notice of proposed rulemaking to repeal the classification of broadband providers as common carriers. In a series of orders between 2002 and 2005, the Commission had classified broadband access as a lightly-regulated “information service” under the Communications Act. In 2015, to bolster its legal arguments in support of net neutrality, the agency reversed those orders and instead classified broadband access as “telecommunications service” subject to common carriage regulations. The Commission’s 2015 decision was a 3-2 party-line vote. The two dissenting Republican commissioners now constitute a 2-1 majority, and have proposed to repeal the 2015 decision. Consistent with State Farm, the notice of proposed rulemaking stresses the unintended consequences of the 2015 order, including a decline in broadband investment and a weakening of privacy laws. It also stresses that repeal would restore the agency’s original classification, and thus draws upon the agency’s prior deliberations to justify its current decision. Unsurprisingly, many of the comments have challenged these factual assertions, and the final rule must address these comments if the Commission decides to proceed with the repeal.

Politics and the Administrative Law of Deregulation

Of course, adhering to State Farm is a bit of a fiction. Ultimately, in these cases the agency has not suffered a change of heart, but of personnel. The Trump administration’s decision to repeal Obama-era regulations stems from a change to a political regime that favors less regulation. The same was true of the Reagan administration’s deregulation efforts, which drove the agency’s position in State Farm. In partial dissent in that case, then-Justice Rehnquist suggested that the Court should call a spade a spade and allow politically driven reversals. He would have held that “[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations.”[11] The majority did not directly respond to this point, although one might argue that if it worked reciprocally, such an explanation would eviscerate judicial review of agency action. A general regulatory or deregulatory mood may explain an agency’s broad goals, but it says nothing about why any particular rule is justified on the facts relevant to its merits. The Court was right to require a policy, rather than political, explanation for an agency’s action.

Lessons for the Trump Administration

By reversing policy statements with which it disagreed and passing Congressional Review Act resolutions against Obama’s eleventh-hour initiatives, the Trump administration has identified the low-hanging fruit in its deregulatory project. The lesson of State Farm is that repealing other, longer-standing policies will not be as easy. It will require agencies to undergo the same time-consuming process as they did to enact the rules that they seek now to undo—and to overcome similar opposition from those who support the status quo.

And this is where the Trump administration’s focus on short-term gains may hurt its longer-term goals. As an initial volley against the administrative state, President Trump announced a government-wide hiring freeze.[12] As Obama-era employees departed, this attrition has left agencies short of the personnel needed to do the blocking and tackling required under State Farm. His proposed agency budget cuts compound the problem, by denying agencies the resources they need to implement deregulation.[13]

As he left office, President Harry S. Truman remarked of his successor, “He’ll sit there and say, ‘do this’ and ‘do that’ and nothing will happen. Poor Ike—it won’t be a bit like the Army.” The Trump administration may soon learn a similar lesson the hard way. If the White House is serious about achieving lasting deregulatory change, it must do so methodically, on an agency-by-agency, regulation-by-regulation basis, and avoid securing minor budget victories at the expense of losing the agency resources necessary to effect that change.

[1] G.G. ex rel Grimm v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), vacated and remanded, Gloucester County School Bd. v. G.G. ex rel Grimm, 137 S.Ct. 1239 (2017).

[2] Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016).

[3] Gloucester County School Bd. v. G.G. ex rel Grimm, 137 S.Ct. 369 (2017).

[4] See Massachusetts Session Laws 2016 c.134, available at https://malegislature.gov/Laws/SessionLaws/Acts/2016/Chapter134https://malegislature.gov/Laws/SessionLaws/Acts/2016/Chapter134.

[5] 5 U.S.C. § 801 et seq.

[6] 462 U.S. 919 (1983).

[7] Pub.L. 115-4 (Feb. 14, 2017) (SEC Disclosure Rule); Pub.L. 115-5 (Feb. 16, 2017) (Stream Protection Rule); Pub.L. 115-8 (Feb. 28, 2017) (SSA Rule implementing NICS Improvement Act of 2007); Pub.L. 115-11 (Mar. 27, 2017) (NASA rule on government contracts); Pub.L. 115-12 (Mar. 27, 2017) (DOI rule on land use plans); Pub.L. 115-13 (Mar. 27, 2017) (Education Department accountability rule); Pub.L. 115-4 (Mar. 27, 2017) (Education Department teacher preparation rule); Pub.L. 115-17 (Mar. 31, 2017) (DOL Drug Testing Rule); Pub.L. 115-20 (Apr. 3, 2017) (DOI Rule on Alaska Wildlife Refuges); Pub.L. 115-21 (Apr. 3, 2017) (DOL employee injury recordkeeping rule); Pub.L. 115-22 (Apr. 3, 2017) (FCC Data Privacy Rule); Pub.L. 115-23 (Apr. 13, 2017) (HHS Title X rule); Pub.L. 115-24 (Apr. 13, 2017 (DOL rule on municipal savings plans); Pub.L. 115-35 (May 17, 2017) (DOL rule on state savings plans).

[8] See 5 U.S.C. § 553.

[9] 463 U.S. 29 (1983).

[10] Id. at 30.

[11] Id. at 59 (Rehnquist, J., concurring in part and dissenting in part).

[12] See Presidential Memorandum Regarding the Hiring Freeze, January 23, 2017, available at https://www.whitehouse.gov/the-press-office/2017/01/23/presidential-memorandum-regarding-hiring-freeze.

[13] See President Trump’s Taxpayer First Budget, available at https://www.whitehouse.gov/taxpayers-first; see Gregory Kreig and Will Mullery, Trump’s Budget By the Numbers: What Gets Cut and Why, CNN.com, May 23, 2017, available at http://www.cnn.com/2017/05/23/politics/trump-budget-cuts-programs/index.html.

Daniel Lyons is an Associate Professor of Law (with tenure) at Boston College Law School, where he specializes in administrative law, telecommunications, and Internet law.