Executive Orders - Part 2

Question 1

Regulatory Agenda Day

Answer 1

• unrelated to EOs, but Prof mentioned in class that twice a year all federal agencies have to issue their semi-annual regulatory agendas

Question 2

What happens if President promises to do something in an EO but doesn’t?

Answer 2

• essentially, you’re out of luck -> courts won’t get involved, as established in the Manhattan-Bronx case

Question 3

Chamber of Commerce v. Reich - Facts

Answer 3

• 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)

Question 4

Reich - Chamber’s Argument

Answer 4

• 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

Question 5

Reich - Cause of Action Issue

Answer 5

• 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

Question 6

Reich - Ruling + Reasoning on Cause of Action Issue

Answer 6

• 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)

Question 7

Reich - Significance

Answer 7

• 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

Question 8

City and County of San Francisco v. Trump - Facts

Answer 8

• 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

Question 9

San Francisco - Youngstown

Answer 9

• “lowest ebb” (category 3) - Congress has said how the $ is to be spent, + Pres saying otherwise is a contradiction

Question 10

San Francisco - Trump Args + Ct Responses

Answer 10

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

Question 11

San Francisco - Ultimate Conclusion

Answer 11

• EO unconstitutional - Congress has spending power, not Pres. -> Pres must follow when Congress says how to spend $

Question 12

Principles from the Cases Re When EOs Reviewable

Answer 12

• 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

Question 13

Hirabayashi v. US - Facts

Answer 13

• 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

Question 14

Hirabayashi - Ruling + Reasoning

Answer 14

• 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)

Question 15

Hirabayashi - Questions Presented

Answer 15

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)

Question 16

Hirabayashi - Significance for Admin Law

Answer 16

• doctrine of ratification -> addresses q of how to treat EO when something Congress does arguably ratifies it

Question 17

United States v. Midwest Oil Co - Facts

Answer 17

• 1915
• somebody w/in DOI says we may have given up too much land w/ oil -> Pres issues EO (Temporary Petroleum Withdrawal #5)
• 1910 - pls extract oil from the reserved land -> get sued by gov

Question 18

US v. Midwest Oil Co - Oil Args

Answer 18

Withdrawal order was for the purpose of preventing acquisition of public oil lands by qualified citizens under existing statutes, pending efforts to obtain a change in law -> beyond power of Pres
-Exec can’t limit rights given to public lands by Congress
-Exec Power dependent on congressional authority
-Exec doesn’t have power to withdraw public lands from operative effect of existing laws w/out authority of some law of Congress which gives power of withdrawal
-Even where no specific statute directly authorizes Exec act, Exec derives its authority from an assumed grant by Congress manifested by frequent enactments of statutes giving like authority in like cases

Act of Feb 11 1897 must continue to be the law until repealed by some other act of Congress or by enactment of some other law with effect of repeal
-No such repeal
-No long-continued practice or customary usage to support withdrawal
-To suspend the operation of laws is legislation, not regulation

Question 19

US v. Midwest Oil Co - Ruling + Reasoning

Answer 19

• upheld Pres right to withdraw pub oil lands from private acquisition
• acknowledged 1897 Lands Act didn’t give Pres authority to withdraw land from the grant
• didn’t really address whether Pres has authority to withdraw land pursuant to authority as Exec in Chief
• more accepts Pres actions b/c not 1st instance of Exec withdrawing land Congress had broadly thrown open to acquisition -> concept of pattern of gov action + Congressional inaction in the face of it -> DOCTRINE OF ACQUIESCENCE

Question 20

Midwest Oil - Comparison w/ Other Cases

Answer 20

• Youngstown - Exec did tell Congress what happened, Congress didn’t do anything, but weirdly acquiescence never came up
• eviction moratorium - Congress never passed legislation to say subsequent extension wasn’t okay

Question 21

Relationship Between Congress and Pres EOs

Answer 21

• Hirabayashi + Midwest Oil sort of show Pres power theoretically can be expanded by Congressional action (ratification) or inaction (acquiescence)

Question 22

What happens if Congress considers something but doesn’t do it?

Answer 22

• Reich - Congress had been considering leg for years
• Obama admin + DACA - Congress had long considered DREAM Act
• big category - pattern of Exec pushing for leg then acting on its own when the leg fails -> Prof said something uncomfortable about this, but also difficult for Pres strategically
  -> open q of whether Cong failure to act constrains Pres
  -> q of what to do strategically, especially in our polarized times

Question 23

EO 14043 (Pandemic)

Answer 23

• vax mandate - required agencies to implement req that all fed employees get vaccinated (exemptions for religious + health reasons)
• EO gave a bit more detail on basis of authority (Prof said tend to get more detail when there’s clear basis)
• theoretically, Pres has lots of authority over fed employees, but EO challenged -> ct says doesn’t have juris under Civil Services Reform Act
  -> PRINCIPLE from this challenge - if Congress prescribes a particular method for judicial review, immediate challenge to executive authority isn’t available

Question 24

EO 13998 (Pandemic)

Answer 24

• travel EO - masking
• direction to agencies to use regulatory authority to require masks
• verbs used - “shall immediately take action” (pretty firm lingo) -> Prof said the more directive the verbs, the less space between setting exec branch priorities + impacting private sector
• Pres just relying on general authority (Con + laws)
• litigation winds up succeeding, but pls ultimately attacked just the CDC order, not the EO

Question 25

Timing of Executive Orders

Answer 25

- often dominate early days of an administration -> not constrained by APA, no notice and comment period -> makes them a very agile tool -> can also be drafted during the transition period + ready to be signed on day 1 -> communicate priorities + plan quickly -> organizing White House also a good thing to get done on day 1 - also good for immediate reaction (regs take time) + good way of signaling to the public that you're on top of it