Recent Developments in Separation of Powers Richard E. Levy. May 17-18, 2018 University of Kansas School of Law

Transcription

1 Recent Developments in Separation of Powers Richard E. Levy May 17-18, 2018 University of Kansas School of Law

2 Recent Developments in the Law Separation of Powers: Presidential Power in the Obama and Trump Administrations By Richard E. Levy 1 J.B. Smith Distinguished Professor of Constitutional Law University of Kansas School of Law I. Introduction: One consistent trend in the evolution of government since the time of the founding has been the expansion of presidential authority. In recent years, this trend has accelerated at an exponential rate, propelled by the war on terror and the disfunction of our hyperpartisan Congress. A. Recent Developments: Both President Obama and President Trump have taken actions that challenge separation of powers principles and stretch the limits of presidential authority. B. Organization and Coverage: To provide context for consideration of particular issues, the outline begins with an overview of basic separation of powers principles and their implications for presidential authority. It then discusses five issues raised by recent presidential actions: The Use of Force in the War on Terror Diplomacy and Agreements in the Era of Hyperpartisanship Immigration Policy and Enforcement Appointment, Oversight, and Removal of Officers Executive Privileges and Immunities II. Basic Separation of Powers Principles and Presidential Authority: In order to understand the issues raised by presidential actions, it is important to understand basic separation of powers principles and their application in practice. A. Basic Principles: Under basic separation of powers principles, Congress makes the law, the President and executive officers execute the law, and the judiciary interprets the law. 1 The views expressed herein are solely those of the author and do not reflect the views of the University of Kansas or the School of Law.

3 1. Legislative Power: The legislative power to make the law is the antecedent power to adopt binding rules of general applicability that determine the ends and means of public policy. a. Article I., 1, of the Constitution vests this power in Congress, the most politically accountable branch, which must meet requirements of bicameralism and presentment to enact laws. See Article II, 7, cl. 2. b. Congress can only act within the scope of enumerated powers, but those powers include the incidental authority to enact laws that are necessary and proper to the exercise of those powers. See Article I, 8. c. The Senate must consent to important presidential appointments and to treaties. See Article II, 2, cl. 2. d. Congress may not delegate the legislative power to the President, agencies, or anyone else, but it necessarily delegates the power to implement laws to executive officers and courts. See, e.g., Whitman v. American Trucking Associations, 531 U.S. 457 (2001) (upholding delegation of regulatory authority to EPA because Congress provided sufficient standards to guide and control agency discretion). 2. Executive Power: The executive power to implement the laws derives from the laws that Congress enacts, but the President has substantial independent authority in the field of foreign relations. a. Article II, 1 of the Constitution vests this power in an elected President with a national constituency, who heads a unitary executive branch and has the duty to take care that the laws are faithfully executed. See Article II, 3. b. Presidential action must be supported by either statutory delegations of power or independent constitutional authority, which may be express or implied. See Youngstown Sheet & Tube v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 585 (1952) ( The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. ) c. The President has express and implied powers to appoint, supervise, and remove officers of the United States engaged in the execution of the laws, although Congress may create independent agencies and require good cause for the removal of some officers. See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010) (upholding appointment provisions for agency but concluding that removal provisions interfered with the President s duty to take care that the laws are faithfully executed); Morrison v. Olson, 487 U. S. 654 (1988) (upholding the appointment and removal provisions under the independent counsel law). Recent Developments in the Law: Separation of Powers Page 2

4 d. The President has independent constitutional authority as Commander in Chief of the armed forces and chief representative of the United States in foreign relations matters, although Congress also has powers related to the use of force and the conduct of foreign relations. See, e.g., (Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (concluding that President s authority as commander in chief to create and employ military commissions to try enemy combatants for violations of the laws of war did not include power to use military commissions to try unlawful enemy combatants for conspiracy because such offenses were not recognized under the laws of war and their trial by commission was not authorized by statute). 3. Judicial Power: The judicial power to interpret the laws arises in connection with the courts authority to resolve cases and controversies within their jurisdiction. a. Article III, 1 of the Constitution vests this power in the judiciary, including the Supreme Court and such lower courts as Congress may establish, whose independence is assured through life tenure and salary protections. See id. b. Article III provides for jurisdiction over cases and controversies arising under federal law, between citizens of different states, and in various other areas implicating national interests. See Article III, 2, cl. 1. c. The exercise of judicial power depends on a justiciable case or controversy, which incorporates various requirements related to standing, ripeness, and mootness and precludes the resolution of political questions. d. Under the rule of law, the judicial power to resolve cases and controversies implies the power to review statutes for constitutionality and executive action for compliance with the law. See Marbury v. Madison, 5 U.S. (1 Cranch) (1803). B. Separation of Powers Principles in Practice: Although basic separation of powers principles are fairly easy to state, applying them in practice presents an enormous number of difficult questions, especially in the context of the modern world. 1. Formalism and Functionalism in Separation of Powers Analysis: One central question is whether to use formalism or functionalism in applying these principles. Formalistic analysis is more likely to result in a finding of a separation of powers violation, while functionalism tolerates a much broader array of institutional arrangements. a. Formalism requires strict separation of powers, with the analysis centered on the proper characterization of a particular action as legislative, executive, or judicial in order to determine whether the proper branch exercised the power in accordance with constitutional requirements. See, e.g., INS v. Chadha, 462 Recent Developments in the Law: Separation of Powers Page 3

5 U.S. 919 (1983) (using formalistic analysis to invalidate legislative veto as violation of bicameralism and presentment requirements). b. Functionalism starts with the premise that legislative, executive, and judicial powers overlap, with the analysis centered on whether a particular institutional structure preserves the essential balance of power among the branches. See, e.g., Morrison v. Olson, supra (using functional analysis to uphold independent counsel law). c. The United States Supreme Court is not consistent in its approach to separation of powers it usually takes a functional approach to reject separation of powers challenges, but occasionally adopts more formalistic analysis to invalidate government action as a violation of separation of powers. 2. The Growth of Presidential Power: The Court s usually functional approach to separation of powers has facilitated the growth of presidential power over time. a. The rise of the modern administrative state has led to the accumulation of significant quasi-legislative and quasi-judicial authority in administrative agencies in the executive branch, with significant presidential policy control through the power to appoint, oversee, and remove officers in those agencies. See, e.g., Free Enterprise Fund, supra. b. The President s role as Commander in Chief has expanded over time to include significant authority to initiate the use of force without explicit congressional authorization and the President s role as chief representative in the conduct of foreign relations includes the ability to reach binding legal agreements with foreign powers without Senate approval. See American Ins. Ass n v. Garamendi, 539 U.S. 396 (2003) (concluding that executive agreement reached without Senate consent preempted state law). c. In many areas, the scope of presidential power is informed by historical practices, which tend to facilitate the expansion of presidential power over time, especially in the absence of authoritative judicial precedents. 3. The President and Congress: In the Steel Seizure Case, supra, Justice Jackson famously observed in an influential concurring opinion that the scope of presidential power depends on its interaction with Congress s exercise of the legislative power, resulting in a three-part framework. See 343 U.S. at (Jackson, J., concurring). a. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In such cases, Recent Developments in the Law: Separation of Powers Page 4

6 presidential action is valid unless the delegation of authority was improper or the exercise of authority violates some other constitutional provision. b. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. In such cases, the President s power to act often depends more on political considerations than on legal authority. c. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. In such cases, the presidential action is invalid unless Congress has violated separation of powers by interfering with the President s constitutional authority (or the statute is otherwise unconstitutional). III. Use of Force in the War on Terror: The Constitution divides power over the use of military force between Congress and the President. Although Congress retains the power to declare war, controls funding for the military, and has regulatory authority over the armed forces, in practice the President s power to use force unilaterally has greatly expanded over time. Key issues in the Obama and Trump administrations have been the expansive reliance on the Authorization for the Use of Military Force adopted after 9/11 and the decision to use force in various contexts without explicit congressional authorization. A. Allocation of War Powers: The constitution divides power over the military between the President and Congress, but over time the balance has shifted toward the President. 1. Declaring and Making War: The Constitution vests Congress with the power to declare war as well as various regulatory powers in relation to the military, see Article I, 8, cls , but it makes the President Commander in Chief. See Article II, 2, cl. 1. This division of authority reflects a very conscious decision concerning the appropriate roles of the President and Congress in regard to the use of force. a. The Framers vested the fundamental choices about the use and regulation of military force to Congress, because they believed the decision to go to war was so important that it ought to be made by the most politically accountable branch of government. b. At the same time, however, experience taught that, once the decision to go to war had been made, it was necessary to have a single commander to lead the military, develop strategy, and make critical decisions. Recent Developments in the Law: Separation of Powers Page 5

7 2. Inherent Powers of the Commander in Chief: Although only Congress may declare war, the President has inherent power as Commander in Chief to use force without a declaration under some circumstances. a. In The Amy Warwick (The Prize Cases), 67 U.S. (2 Black) 635 (1862), the Supreme Court upheld President Lincoln s initiation of a naval blockade against southern ports at the outset of the Civil War, reasoning that the President had inherent power to repel an invasion or suppress an insurrection without a declaration of war. b. Subsequent Presidents have taken military action without formal declarations of war, ranging from military incursions short of war to large-scale conflicts such as the Korean War and the War in Vietnam. c. In some of these instances, Presidents have claimed congressional approval through actions other than formal declarations of war, including international treaties, resolutions, or continued military funding. d. Efforts to challenge the legality of presidential uses of force in court have generally failed on justiciability grounds, either because plaintiffs had lacked standing or under the political question doctrine. 3. The War Powers Resolution: In an effort to assert greater control over the use of military force, Congress enacted the War Powers Resolution in 1973, overriding President Nixon s veto. a. Although it is denominated a resolution, the War Powers Resolution satisfied the requirements of bicameralism and presentment, has the same effect as a statute, and is included in the United States Code. See 50 U.S.C b. The resolution requires the President to notify Congress if military personnel are deployed without prior congressional authorization to locations in which their involvement in hostilities is likely or imminent. c. Once the notification is made, military personnel may only remain there for 60 days (or 90 if the President certifies the necessity of extending deployment) unless Congress expressly authorizes the deployment. d. The War Powers Resolution has had virtually no effect on the presidential use of force, as its provisions have never been invoked to require the return of troops and it has no applicability to modern military actions such as missile or drone strikes. B. Authorization for the Use of Military Force: There has been no formal declaration of war in the war on terror, which does not conform to the traditional understanding Recent Developments in the Law: Separation of Powers Page 6

8 of armed conflict between sovereign states, but Congress has expressly authorized the use of military force. 1. Congressional Authorization: Congress might authorize the use of force in various ways, including formal declarations of war, resolutions of Authorization for the Use of Military Force (AUMFs), or other means of explicit or implicit approval. See Jennifer K. Elsea & Matthew C. Weed, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications (Congressional Research Service, April 18, 2014) (available at a. A formal declaration of war represents the commitment of the nation to an all-out military conflict against a specified enemy or enemies. Under international treaties and the customary norms of international law, it has important legal consequences for the nations engaged in war ( belligerents ) and neutral countries. The last time the United States formally declared war was World War II. b. Historically, Presidents have at times sought and received express congressional authorization to use force in conflicts that did not warrant a formal declaration of war. Thus, for example, in the first Iraq War, President George H.W. Bush initially claimed that congressional authorization was not needed because the use of force was pursuant to a United Nations Security Council Resolution, but he eventually sought and obtained a resolution authorizing the use of force. See Authorization for Use of Military Force against Iraq Resolution, PL 102 1, January 14, 1991, 105 Stat. 3 (1991) (authorizing use of force in first Iraq War). c. Other conflicts rest on less explicit forms of authorization, including international agreements (e.g., the Korean War) or tacit approval reflected through ongoing appropriations and other forms of acquiescence (Vietnam). See Com. of Mass. v. Laird, 451 F.2d 26 (1 st Cir. 1971) (concluding that it was unnecessary to consider whether Vietnam War exceeded President s sole power as Commander in Chief because congressional actions had effectively approved it); Orlando v. Laird, 443 F.2d 1039 (2 nd Cir. 1971) (same). 2. AUMFs in the War on Terror: In the wake 9/11, President George W. Bush sought and received two resolutions authorizing the use of force. Because these are joint resolutions approved by the House, Senate, and President, they have the force of law and are equivalent to statutes. a. Congress first enacted Senate Joint Resolution 23, To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States, Public Law , September 18, 2001, 115 Stat. 224 (2001). This resolution authorized the President to use all necessary and appropriate force against those nations, organizations, or Recent Developments in the Law: Separation of Powers Page 7

9 persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, b. Second, Congress enacted a House Joint Resolution 114, To authorize the use of United States Armed Forces against Iraq, Pub.L , October 16, 2002, 116 Stat (2002). This resolution authorized the President to use the Armed Forces of the United States as he determines to be necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq and enforce all relevant United Nations Security Council resolutions. The Iraq AUMF required the President to make certain findings in order to justify the use of force, which President Bush promptly made. c. These Authorizations for the Use of Military Force (AUMFs) are broad in scope and indefinite in duration. Some have argued that it is time to revisit them and adopt a new AUMF that provides greater focus and is more limited in scope and duration. 3. AUMFs and the Expansion of the War on Terror: As the nature of the terrorist threat has evolved and new groups, such as the Islamic State or Al Shabaab, have emerged, Presidents have argued that these AUMFs provide the basis for military action. See Matthew C. Weed, A New Authorization for Use of Military Force Against the Islamic State: Issues and Current Proposals (Congressional Research Service, February 21, 2017) (available at Al Shabaab; Charlie Savage, Eric Schmitt and Mark Mazzettinov, Obama Expands War With Al Qaeda to Include Shabab in Somalia, N.Y. TIMES, Nov. 27, 2016 (available at a. Critics have challenged the reliance on these AUMFs to justify military actions against terrorist organizations that did not exist at the time of the 9/11 attacks, are active in regions far removed from Al Qaeda s areas of operation, and that have no known affiliation with Al Qaeda. b. In Smith v. Obama, 217 F.Supp.3d 283 (D.D.C. 2016), a federal court dismissed a lawsuit brought by a member of the military seeking to challenge the President s authority to engage in military action against the Islamic State. The court concluded that the case presented a nonjusticiable political question. An appeal in Smith is currently pending. C. Use of Force Without Congressional Authorization: Although it is clear that the President has some authority to use military force even without congressional authorization the precise scope of that authority is unclear and recent presidential actions, such as strikes in Libya and Syria, test those limits. Recent Developments in the Law: Separation of Powers Page 8

10 1. The Prize Cases and Historical Precedents: In The Prize Cases, supra, the Supreme Court recognized the President s inherent authority as Commander in Chief to suppress an insurrection or repel an invasion notwithstanding the lack of a congressional declaration of war or any other authorization. a. The limits of The Prize Cases and its rationale are unclear. Since the time of that decision, many Presidents have taken military action to protect United States interests without a clear basis in constitutional, statutory, or other legal authority. Examples include President Reagan s use of force in Grenada, President George H.W. Bush s use of force to capture Manual Noriega in Panama, and President Clinton s use of force in Kosovo. b. These sorts of actions typically fall short of all-out war and Presidents may claim not only inherent authority to protect American citizens and other United States interests, but also implied authority under legislative enactments or international treaties. c. In practice, there seems to be little that Congress or the courts can or will do to prevent the unilateral use of force, and Presidents generally seek congressional authorization only when it is politically expedient to do so because the use of force is likely to be sustained and costly. 2. Libya and Syria: Both President Obama and President Trump have used military force to achieve strategic objectives in other countries with prior congressional authorization and without engaging the War Powers Resolution. Efforts to challenge these measures in court have been dismissed. a. President Obama authorized air strikes in Libya in 2011, an ongoing operation that exceeded the time limits specified in the War Powers Resolution. He claimed that the Resolution did not apply because United States forces were not engaged in sustained fighting, active exchanges of fire with enemy forces, or stationed on the ground in Libya. Courts dismissed legal challenges to this use of force on justiciability grounds. See Kucinich v. Obama, 821 F.Supp.2d 110 (D.D.C. 2011) (dismissing House of Representatives members challenge to President Obama s use of force in Libya for lack of standing); Whitney v. Obama, 845 F.Supp.2d 136 (D.D.C. 2012) (dismissing challenge to use of force in Libya as moot because use of military in Libya had ceased). b. Although President Obama was hesitant to use force in Syria without congressional authorization, President Trump has twice ordered strikes in Syria in response to Bashar Hafez al-assad s use of chemical weapons. A challenge to the first strike was dismissed on standing, ripeness, and political question grounds in Endeley v. United States Department of Defense, 268 F.Supp.3d 166 (D.D.C. 2017). Recent Developments in the Law: Separation of Powers Page 9

11 IV. Diplomacy and Agreements in the Era of Hyperpartisanship: Because it is important for the nation to speak with one voice in its interactions with other nations, the President is the chief representative of the United States in matters of foreign relations. Traditionally, Presidents have received bipartisan support in this arena; the principle was that partisanship stops at the border. This principle has faded in this era of hyperpartisanship. A. The President s Foreign Relations Powers: The Constitution vests the President with the primary responsibility for the conduct of foreign relations. So that the nation may speak with one voice, the President acts as the sole representative of the United States in international matters. The president s powers in this area are a mix of explicit and implied powers, often informed by historical precedents and practices. 1. The President as Representative: In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the Supreme Court proclaimed that the President has the very delicate, plenary and exclusive power... as the sole organ of the federal government in the field of international relations. This understanding is based on constitutional text and practical considerations. a. Constitutional provisions explicitly vest the President with the power to appoint (with Senate consent) and receive ambassadors, see Article II. 2, cl. 2 & 3, and to negotiate treaties subject to Senate consent. These provisions reflect the President s role as representative. b. Curtiss-Wright also highlighted the important practical advantages of presidential control over the conduct of foreign policy including the need to speak with one voice to avoid embarrassment, the President s superior information and resources in the field, and the President s superior ability to maintain secrecy. c. Accordingly, the Court has been willing to give broad scope to presidential authority in this area, recognizing incidental powers (such as the power to recognize governments and enter into executive agreements) and additional powers established through historical practices as an historical gloss on presidential power. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981) (upholding executive agreement resolving Iranian hostage crisis as justified in part by past practice of presidential settlement of international claims on behalf of citizens, recognized as an historical gloss on presidential power). 2. Treaties and Other Agreements: Although the Constitution prescribes the process for entering into treaties with other countries (which require Senate consent) it also contemplates that other types of international agreements are also possible. Compare Article I, 10, cl 1 (prohibiting states from entering into any treaty or alliance) with Article I, 10, cl. 3 (prohibiting states from entering into any agreement or compact without congressional consent). Recent Developments in the Law: Separation of Powers Page 10

12 a. Treaties, which require Senate consent, see Article II, 2, cl. 2, are generally understood to be the most important form of international agreement. It is commonly assumed that some types of agreements must, from a constitutional perspective, come in the form of a treaty, although there is no authority on that question. Treaties are the equivalent of statutes and may in some cases repeal or modify statutory provisions, depending on whether they have direct legal effects. b. Other types of international agreements are generally referred to as executive agreements, which include both agreements authorized or implemented by statute and agreements entered into on the basis of presidential power alone. The constitutional basis, legal authority, and binding character of agreements authorized or implemented by statute is broadly accepted, even for agreements that might otherwise be seen as requiring treaties. For example, the North American Free Trade Agreement Implementation Act represents congressional authorization for and approval of NAFTA. c. The scope of presidential authority to enter into executive agreements without congressional authorization remains unclear. In every case dealing with such agreements, the Supreme Court has upheld the particular agreement in question, but these cases might be interpreted narrowly to require some independent authority to support an agreement and at least tacit congressional consent. See American Ins. Ass n v. Garamendi, 539 U.S. 396 (2003); Dames & Moore v. Regan, 453 U.S. 654 (1981); United States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1937). A valid executive agreement can alter legal rights and preempt state law. B. Diplomacy and Recognition: In matters of diplomacy, the President s power is paramount. In particular, the power to receive ambassadors has been interpreted to encompass sole authority to recognize foreign governments. See Belmont and Pink, supra (concluding that executive agreement was valid in part because it was incidental to the recognition of the government of the Soviet Union. Recent controversies surrounding the capital of Israel and the imposition or lifting of sanctions highlight these powers. 1. The Capital of Israel: One controversial diplomatic question is whether to recognize Jerusalem as the capital of Israel. Israel relocated the capital to Jerusalem, parts of which it captured in the Six-Day War, but its sovereignty over Jerusalem is a central question in negotiations with Palestinians and most countries have refused to recognize Jerusalem as Israel s capital. a. Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, 116 Stat. 1350, sought to force the recognition of Jerusalem as Israel s capital in various ways. President Bush issued a signing statement expressing his view that the statute, if construed as mandatory rather than advisory, would violate the President s sole power over the conduct of diplomacy. Both the Recent Developments in the Law: Separation of Powers Page 11

13 Bush and Obama Administrations declined to recognize Israeli sovereignty over occupied portions of Jerusalem. b. In Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II), 135 S. Ct (2015), the Supreme Court invalidated 214(d) which required the State Department to list Jerusalem, Israel, as the birthplace of children of United States citizens born in the occupied portions of Jerusalem. The Court concluded that the statute impermissibly interfered with the President s exclusive power of recognition. c. As you may know, the Trump Administration has recognized Jerusalem as the capital of Israel and announced plans to move the United States embassy there. See Mark Landler, Trump Recognizes Jerusalem as Israel s Capital and Orders U.S. Embassy to Move, N.Y. TIMES, Dec. 6, 2017, available at This decision is, under Zivotofsky, squarely within his power. 2. Sanctions Legislation: In Curtiss-Wright, supra, the Supreme Court upheld the delegation of authority to the President to impose an arms embargo on a certain region of South America, concluding that Congress may delegate broad authority to the President in the field of foreign relations because legislation in this area must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. a. Many statutes delegate discretion to the President to impose sanctions of various kinds on other countries or international actors, thus strengthening the President s hand in international negotiations. Thus, for example, the lifting of sanctions figured prominently in President Obama s agreement with Iran to end its nuclear program, which will be discussed further below. b. Various statutes, for example, authorize the President to impose trade restrictions, including tariffs, when required by national security or in response to unfair trade practices by our trading partners. Using this authority, President Trump has imposed tariffs on steel and aluminum. See Presidential Proclamation on Adjusting Imports of Aluminum into the United States, March 8, 2018, available at c. In a somewhat unusual move, Congress passed by overwhelming majorities a statute mandating the imposition of sanctions against Russia for its interference with the 2016 elections. See Countering America s Adversaries Through Sanctions Act, Public Law No , Public Law No (Aug ). Although President Trump signed the bill into law, he issued Recent Developments in the Law: Separation of Powers Page 12

14 a signing statement objecting to the interference with his ability to negotiate with Russia. Ultimately, the administration did impose sanctions on Russia, although not until after a statutory deadline had passed. Nonetheless, the administration has backed away from the suggestion of some officials that additional sanctions would be forthcoming. C. International Agreements: The transition from President Obama to President Trump has important consequences for several agreements negotiated during the Obama Administration the Iran Deal to constrain its nuclear program, the Trans Pacific Partnership, and the Paris Climate Agreement. 1. The Iran Deal and Its Aftermath: Given its role in the Middle East and its involvement in promoting terrorism, the progress of Iran s program to develop nuclear weapons has been a source of grave concern. a. President Obama s negotiation of a deal with Iran to suspend its nuclear program has proven to be controversial, as critics have argued that it is not strong enough. The deal, brokered multilaterally in conjunction with European partners, included a promise to waive economic sanctions against Iran if it took certain steps intended to prevent weaponization of its nuclear program. b. Members of the Senate, led by Senator Tom Cotton, wrote an Open Letter to the Leaders of the Islamic Republic of Iran, warning them that, without Senate approval, the deal was a mere executive agreement that future Presidents could revoke and Congress could modify. The text of the letter is available at and other sites on the web. Critics of the letter argued that it was an unlawful, even treasonous, interference with presidential authority to conduct foreign relations. c. Congress eventually adopted the Iran Nuclear Agreement Review Act, Public Law No , 129 STAT. 201 (May 2, 2015). In Bender v. Obama, 653 Fed.Appx. 31 (2 nd Cir. 2016) (unpublished decision), the Second Circuit held that a private attorney lacked standing to challenge the constitutionality of the Act and the underlying agreement on the theory that it was a treaty requiring the consent of the Senate. Congress did not, however, either approve or disapprove the agreement. d. As of this writing, President Trump has suggested that he will effectively kill the agreement by refusing to extend waivers from sanctions against Iran. The deadline for extending the waivers is May 12, If President Trump does kill the agreement, it is unclear whether he will be able or willing to negotiate a new one or what would happen if no new agreement is reached. Recent Developments in the Law: Separation of Powers Page 13

15 2. The Trump Administration and Other Agreements: President Obama signed, on behalf of the United States, two multilateral agreements that President Trump opposed: The Trans-Pacific Partnership and the Paris Climate Accords. Shortly after taking office, President Trump withdrew from both agreements. Whatever the consequences of those decisions as a matter of international law or foreign relations, they were undoubtedly within the scope of his presidential authority. a. The Trans-Pacific Partnership was a wide-ranging free trade agreement involving the United States, China, Japan, and a number of other Pacific Rim countries. For the full text of the agreement, see The United States signed onto the agreement during the Obama Administration, but Congress never ratified it, as required by its terms. It is doubtful that the President would have the authority to enter into such an agreement on his own authority, since it would require changes to various statutes and other laws. President Trump opposed the agreement on the campaign trail, and withdrawing from the agreement was one of his first actions upon taking office. See Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement, Jan. 23, 2017, available at b. The Paris Climate Agreement (Dec. 13, 2015), in UNFCCC, Report of the Conference of the Parties on its Twenty-First Session, Addendum, UN Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016), is a global initiative to combat climate change. For discussion of the agreements provisions and implications, see Daniel Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 Am. J. Int'l L. 288 (2016). The United States joined almost every other country in the world by signed onto the agreement during the Obama Administration. President Trump, however, withdrew the United States from the agreement several months after taking office. See Statement by President Trump on the Paris Climate Accord, June 1, 2017, available at V. Immigration Policy: Immigration policy is an enormously complex and controversial subject. Although there is a broad consensus that our current system is deeply flawed and requires major reforms, there is little consensus about how to proceed and efforts at legislative reform are at an impasse. It is not surprising then, that both President Obama and President Trump have taken unilateral actions in these areas, albeit with different policy goals in mind. A. Immigration Policy at an Impasse: Immigration in the United States is currently governed by a complex set of statutes, regulations, and processes that cannot be fully Recent Developments in the Law: Separation of Powers Page 14

16 described here. This summary therefore addresses only the basic contours of the law so as to provide context for consideration of particular problems and presidential actions. 1. Immigration Law Overview: The Immigration and Nationality Act, as amended, governs immigration into the United States, including granting and revoking visas, the treatment of refugees and asylum seekers, and the removal of aliens who are not lawfully present. a. The statute provides for many different types of visas, ranging from temporary visas (for tourism, educational, or business purposes) and longer term visas (for workers, family members, and others). The nature and types of visas granted, as well as the groups who are eligible to receive them, is one source of controversy. b. The statute also creates protections for asylum seekers (in the United States) and refugees (outside the United States) who may be allowed to enter and /or remain in the United States on humanitarian grounds. See 8 U.S.C c. The statute also contains various provisions concerning the denial or revocation of visas on specified grounds, as well as provisions for the removal of aliens who are not lawfully present. d. The statute delegates considerable enforcement discretion and authority to the President and executive branch officials. 2. Undocumented Aliens: One particular source of controversy surrounding immigration policy is the problem of aliens who are not lawfully present in the United States. Although the precise number of people in this group is a matter of some disagreement and uncertainty, undocumented aliens clearly number in the millions. a. Some advocate taking a hard line on undocumented aliens, including aggressive measures to enforce immigration laws, stepped up efforts to locate and remove undocumented aliens, and increased border security (such as the construction of a wall). b. Others argue that many of these undocumented aliens are honest, hardworking individuals, often brought to the United States as children who have known no other life, that deserve legal protections and a path to citizenship. B. DACA and DAPA: Presidential action to deal with the status of some undocumented aliens has been the source of considerable controversy and, ironically, judicial decisions blocking both the expansion of presidential programs for undocumented aliens and the rescission of those same programs. Recent Developments in the Law: Separation of Powers Page 15

17 1. Enforcement Discretion: As a threshold matter, it is important to see that the President necessarily has a certain amount of enforcement discretion in relation to the removal of aliens who are not lawfully present in the United States. a. Given the limits of available resources, those charged with enforcement of the law must inevitably set enforcement priorities so as to target available resources effectively. This sort of prosecutorial discretion applies to immigration enforcement, because officials simply lack the resources to identify, detain, and remove every person who is not lawfully present in the United States. b. The statute also specifically delegates considerable discretion to the executive branch in these areas. See, e.g., 8 U.S.C. 1229b (delegating discretion to adjust status for removable aliens); 8 U.S.C. 1324a(h)(3) (implicit discretion to authorize aliens to work in the United States); see generally Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9 th Cir. 2014). c. Deferred action predated the Obama Administration, but the Obama Administration adopted a more formal system of deferred action that also conferred some legal rights. 2. Obama Administration Orders: The Obama Administration adopted a series of policies to protect certain classes of undocumented aliens, affording them (1) a right to remain in the United States for a period of years; and (2) lawful status that allowed them to work, get drivers licenses, and be eligible for some government benefits. a. The policy, called Deferred Action for Childhood Arrivals (DACA), as initially adopted in 2012, applied to undocumented aliens brought to the United States as children who had lived in the United States for a number of years. In 2014, the Obama Administration expanded the program, extending to a broader group of childhood arrivals and to the parents of childhood arrivals. This order also extended the period of protection to 3 years. b. In Texas v. United States, 809 F.3d 134 (5 th Cir. 2015), aff d without opinion by evenly divided Court, 136 S. Ct (2016), a federal court of appeals enjoined upheld a nationwide injunction prohibiting the implementation of the expanded 2014 policy, concluding that the policy was a legislative rule that had to follow the notice and comment procedures of the Administrative Procedure Act, 5 U.S.C The court also strongly hinted (though it did not hold) that the policy was contrary to the statute and a violation of the President s duty to take care that the laws are faithfully executed. c. The Texas case did not, however, address the validity of the original DACA order from 2012, which remained in effect. Recent Developments in the Law: Separation of Powers Page 16

18 3. Trump Administration and Stepped-Up Enforcement: Insofar as President Trump s campaign emphasized a tough anti-immigration stance, it is not surprising that President Trump took measures targeting undocumented aliens, including the rescission of DACA and stepped up enforcement measures. a. Under pressure from litigants in the Texas case, who threatened a challenge to the original DAPA memo, the Attorney General sent a letter to the Acting Secretary of Homeland Security advising her that the DACA program should be terminated. The next day, she rescinded DACA. See Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA), September 5, 2017, available at b. The rescission of DACA left many individuals in a state of limbo and precipitated a number of lawsuits challenging the rescission. At least three federal courts have enjoined the rescission of DACA, concluding that the DHS memorandum failed to provide a sufficient basis for doing so under well established administrative law judicial review standards. See Regents of University of California v. United States Department of Homeland Security, 279 F.Supp.3d 1011 (N.D. Cal. 2018); Batalla Vidal v. Nielsen, 279 F.Supp.3d 401 (E.D.N.Y. 2018); Coyotl v. Kelly, 261 F.Supp.3d 1328 (N.D. Ga. 2017). Contra Casa De Maryland v. U.S. Department of Homeland Security, 284 F.Supp.3d 758 (D. Md 2018) (rejecting various challenges to end of DACA program). c. In an effort to ramp up enforcement, President Trump also issued Executive Order 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg (Jan. 25, 2017), which outlines the Administration s enforcement policies and sought to deny federal funding for sanctuary jurisdictions that refused to assist with federal enforcement efforts. Federal courts, however, have held that the denial of funding to these jurisdictions is unlawful. See City of Philadelphia v. Sessions, 280 F.Supp.3d 579 (E.D. Pa. 2017) (concluding that plaintiffs were likely to succeed on the merits of their claim that statutes did not grant Attorney General authority to condition funding on compliance with immigration policy); City of Chicago v. Sessions, 264 F.Supp.3d 93 (N.D. Ill. 2017) (same); County of Santa Clara v. Trump, 250 F.Supp.3d 497 (N.D. Cal. 2017) (concluding that order violated separation of powers principles, federalism, and due process). C. Border Security under the Trump Administration: Increased border security was a centerpiece of President Trump s campaign, including the proposed implementation of a Muslim ban and the construction of a border wall. Although President Trump has taken steps to increase border security, he has faced political and legal hurdles. Recent Developments in the Law: Separation of Powers Page 17

19 1. Muslim Ban : Shortly after taking office, President Trump issued the first of several orders imposing a moratorium on entry into the United States from certain specified countries. He has also issued two subsequent orders, each superseding the last, that incorporated revisions to address legal problems or objections to the previous orders. The Supreme Court recently heard oral argument concerning the constitutional validity of these orders, which raise several questions. See Trump v. Hawaii, 138 S. Ct. 923 (2018) (granting writ of certiorari). a. The most frequently discussed issue is whether the order violates freedom of religion by discriminating against Muslims. On its face, the order does not specifically apply to Muslims, but rather to immigrants from specified countries. Nonetheless, those countries are predominantly Muslim (notwithstanding the addition of some non-muslim countries in the most recent version of the order). To the extent that the ban is not explicitly targeting Muslims, the burden is on those challenging the ban to establish that the intent was nonetheless to target immigrants based on their religion. Given the President s frequent references to imposing a Muslim ban while on the campaign trail, the government is in the position of arguing that the Court should not take those statements into account when determining the intent behind the ban. Lower courts to consider this issue have generally concluded that these orders, in all their iterations, were intended to target Muslims. See, e.g. International Refugee Assistance Project v. Trump, 883 F.3d 233 (4 th Cir. 2018). b. A second and equally important issue is whether the President had authority to issue the order. Although the President claims statutory authority under one provision of the statute allowing him to exclude aliens when he determines it is in the national interest to do so, another provision prohibits discrimination against aliens on the basis of their country of origin. Compare 8 U.S.C. 1182(f) ( Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. ); with 8 U.S.C. 1152(a)(1)(A) ( Except as specifically provided in [specified provisions of immigration law], no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence. ). In the pending Supreme Court case, the Ninth Circuit concluded that President Trump had exceeded his authority in granting the order. See Hawaiii v. Trump, 878 F.3d 662 (9 th Cir, 2017), cert. granted 138 S. Ct. 923 (2018). Recent Developments in the Law: Separation of Powers Page 18

20 2. The Wall: Another high profile component of President Trump s enhanced border security efforts is the proposal to build a wall along the border with Mexico. It does not appear likely, however, that President Trump will be able to build the wall without congressional authorization and funding. a. First, it is unclear whether the President has unilateral authority to order the construction of a wall. He might claim that such authority derives from his authority as Commander in Chief to protect against invasions, or that statutes implicitly delegate that authority, but such claims rest on shaky grounds. b. Even if the President has authority, he must also fund the construction of the wall, which likely would require legislation appropriating funds. Although the President has suggested that Mexico would pay for that wall, that seems unlikely. He might also be able to use funds in the budget for the military or for homeland security, if the use of the funds is discretionary. c. The President did achieve a minor legal victory when a lower court upheld the waiver of certain environmental laws to expedite the construction of a prototype border wall and rebuild a fence along the border. See In re Border Infrastructure Envtl. Litig., 284 F.Supp.3d 1092 (S.D. Cal. 2018). 3. Other Measures: In April 2018, the President issued two addition orders directing stepped up enforcement along the border. a. One order provided for the use of the National Guard to provide for border security. See Presidential Memorandum for the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security, April 4, 2018, available at This memorandum relies on the President s authority under 18 U.S.C. 1385, which authorizes the President to request assignment of National Guard forces that remain under the authority of the state. In contrast, the President could have relied on his authority under 10 U.S. Code 12406, but as federalized troops the guard would be subject to the Posse Comitatus Act, which prohibits the use of the military for law enforcement purposes. See 18 U.S.C b. A second order directs cabinet officers to end catch and release practices for individuals apprehended attempting to enter the United States illegally. See Presidential Memorandum for the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Health and Human Services, and the Secretary of Homeland Security, April 6, 2018, available at This order is clearly within the President s authority. Recent Developments in the Law: Separation of Powers Page 19