By Bill Funk, Center for Progressive Reform
Progressives have rightfully taken issue with the Trump administration’s policy goals, from immigration to the environment, from health care to worker safety. Given the president’s decidedly unprogressive stances, one should not be surprised at the policy reversals from the prior administration. One might be surprised, however, and dismayed as well, at the cavalier disregard that the administration has shown for the law, both substantive and procedural.
For example, President Trump’s earlier executive orders on the “Muslim ban” were overturned not just on constitutional grounds, but also on statutory grounds. The most recent ban has also been enjoined on statutory grounds, although the U.S. Supreme Court has just recently decided to review that ruling.
Trump’s executive order on sanctuary jurisdictions met a similar fate. The order stated that the policy of the executive branch was to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Accordingly, it directed the Attorney General and the Secretary of Homeland Security to “ensure that 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.” Section 1373 in essence prohibits state and local jurisdictions from restricting government officials or entities from communicating immigration status information to ICE.
Two local jurisdictions likely to be considered sanctuary jurisdictions challenged the executive order as unconstitutional and contrary to statute. The Department of Justice in defending the order took a novel approach; it said the order had no legal effect because it required agencies to act consistently with the law. It conceded that restrictions on government grants must come from Congress, not the president. In short, the defense was that the order merely directed the Attorney General and DHS Secretary to enforce existing law.
The federal district court judge hearing the case did not buy it and said that interpretation was inconsistent with the language of the order and would render it a nullity. Moreover, the president’s statements concerning the order indicated an intent that it would result in defunding sanctuary cities and that, at least in his view, the order had effect. Consequently, the court enjoined the Attorney General and the secretary from carrying out the order.
Notwithstanding this injunction, Attorney General Jeff Sessions announced two new conditions on grants under the so-called Byrne JAG program. They required, first, that local authorities provide federal agents advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations, and, second, that local authorities provide immigration agents with access to city detention facilities and individuals detained therein. This notice was also enjoined because the court found that the Attorney General had no authority to condition those grants on such grounds. He was unlawfully attempting to coerce the cities into taking action contrary to local law.
Nevertheless, the Attorney General has not given up. On January 24, the Department of Justice sent threatening letters to 23 states, cities, and counties, demanding records showing whether police or correctional agencies are sharing information with federal agents about the immigration status of people in their custody. If the recipients do not comply, the letters said that the department would issue subpoenas or cut off certain federal grant funds. Stay tuned.
The Attorney General fared no better in attempting to repeal the Deferred Action for Childhood Arrivals (DACA) program. In 2017, he sent a letter to the Department of Homeland Security stating that DACA was unlawful. On the basis of that letter, DHS issued a notice terminating DACA on a schedule contained in the notice. This was challenged, and a federal district court in an extensive opinion held the termination unlawful.
The termination was unlawful because the only reason DHS gave was the claim that DACA itself was unlawful, but the court found that DACA was lawful. Inasmuch as the only justification DHS gave for DACA’s termination was in error, there was no lawful justification for its termination. The court did not suggest that the government could not terminate DACA if it proceeded lawfully, but the way the Trump administration had proceeded had violated the law.
The Environmental Protection Agency (EPA) likewise tried to do an end-run around legal requirements when it delayed a rule regulating fugitive emissions from oil and gas wells adopted in the previous administration, pending reconsideration of the rule. In Clean Air Council v. Pruitt, the D.C. Circuit Court of Appeals declared that EPA’s delay was arbitrary and capricious and not authorized by statute; EPA had ignored the language of the Clean Air Act and claimed facts not supported by the record.
The Department of the Interior also tried to effectively repeal two rules adopted before the change in administrations without going through public notice-and-comment rulemaking. It claimed that it could simply delay indefinitely the rules’ compliance dates pursuant to Section 705 of the Administrative Procedure Act (APA). In two separate cases, courts held that Section 705 did not authorize the delay in compliance of rules already in effect. Only by amending the rule through notice and comment could such a change in a rule be made. In one case, the court also held that the delay was arbitrary and capricious because the agency had only considered the costs of compliance, not the benefits of the rule, in deciding to delay it.
Nor were these the only agencies to play fast and loose with the law in attempting to implement the new administration’s policies. In May 2017, Trump issued Executive Order 13798, calling for the Secretary of Health and Human Services (HHS) to consider issuing amended regulations to address conscience-based objections to the requirement for employers to provide contraceptive coverage as part of their health care plan mandated by the Affordable Care Act. In October of that year, the Secretary of HHS responded by issuing interim final rules broadly expanding the exception provided in the regulations for objections by religious organizations. Despite the five months since the order and the lack of any emergency requiring immediate action, HHS chose not to engage in notice-and-comment rulemaking but simply adopted the rules effective immediately and announced it would take comments after the fact. In December, a federal district court enjoined the interim final rules because they had not gone through notice and comment.
On April 28, 2017, President Trump issued Executive Order 13795, “Implementing an America-First Offshore Energy Strategy.” Even before the order had been published in the Federal Register, Secretary of the Interior Ryan Zinke issued his own order to implement the president’s. Among other things, Zinke directed the Bureau of Ocean Energy Management (BOEM) to “immediately initiate development of a new ‘Five-Year Outer Continental Shelf Oil and Gas Leasing Program,’ with full consideration given to leasing the OCS offshore Alaska, Mid-Atlantic, South Atlantic, and the Gulf of Mexico.” This new plan is intended to replace the five-year plan adopted in January 2017 by the Obama administration, which had excluded leasing in the Atlantic and the Beaufort and Chukchi Seas off Alaska.
Whatever the merits of such a new program, at least the department initially appeared to be following the required procedures for adopting leasing programs. There is a question, however, whether all those required procedures will now be followed because Zinke, without any public process whatsoever (but apparently as a political favor to Rick Scott, the Republican governor of Florida), declared that the program would not include any leasing off the coast of Florida. In his words, drilling off the coast of Florida is “off the table.” Granting such an exemption in this manner is so clearly unlawful that the agency quickly backed off the secretary’s statement, saying that the decision was not final. However, the head of BOEM said, “The secretary’s decision will be reflected in the proposed program decision.” Say what?
And it is not just procedural statutes that agencies are ignoring. Most recently, HHS granted Kentucky a waiver of the general Medicaid requirements, enabling the state to require all Medicaid recipients to pay monthly premiums for coverage. In addition, Kentucky may require recipients to engage in 80 hours per month of specified employment or community engagement activities and to document and report their participation as a condition of eligibility.
This has resulted in a challenge both to the Kentucky waiver and the new policy announced by HHS inviting states to submit similar waiver requests, contrary to past policy that prohibited waivers based on work requirements. While the lawsuit raises procedural claims as well, inasmuch as the reversal in policy was done without notice and comment, it also challenges the statutory authority for such waivers.
Waivers are allowable and not unusual under Medicaid, but a waiver must be an “experimental, pilot, or demonstration project” that “is likely to assist in promoting the objectives of the program.” Here, however, both official statements from the agency and public statements by the head of the agency clearly indicate that the purpose of this new waiver authority is not to promote the Medicaid program but to “comprehensively transform Medicaid.” In short, the new waiver policy is not authorized by the statute.
We may be appalled at President Trump’s tweets, but at least they are not the law. However, when agencies reflexively do the president’s bidding without attention to governing statutes and procedural requirements, they break the law by attempting to make law. Existing mechanisms may not be able to rein in the whims of the president, but they should be able to corral “the president made me do it” inclinations of federal agencies.