Drama in the Senate Over a Very Boring Law: The Presidential Records Act

Drama in the Senate Over a Very Boring Law: The Presidential Records Act

Zachary Harris

There has been extensive drama this week in the United States Senate over the nomination of Judge Brett Kavanaugh to the Supreme Court. When the Senate considers a nominee, they typically review documents from the nominee’s career. These documents must undergo an extensive process before they can be released. Senate Democrats claimed the process for releasing the documents was a partisan “sham” meant to prevent the American People from getting “the full truth.” Republicans say the process is meant to speed the release of documents and allow Senators more time to review them. They claim the process is prescribed by the Presidential Records Act.[1]

The Act, first passed in 1978, governs the storage and release of Presidential Records. There are six categories of documents which the outgoing President can ask not be released for up to twelve years following his departure from office. Many of the disputed documents fall within these categories. Importantly, the former President can waive this restriction at any time and allow the documents to be released prior to the twelve-year expiration.

At issue with Kavanaugh’s nomination are thousands of documents created during his tenure in George W. Bush’s White House, where he served in the Counsel’s Office, as an Assistant to the President, and Staff Secretary. The National Archives, which stores all of a former President’s documents, says they have in their possession “the equivalent of several million pages of paper and email records related to Judge Kavanaugh . . . .” By comparison, during the confirmation of Justice Kagan, they released 170,000 pages of documents; for Chief Justice Roberts, only 70,000.

The process for the National Archives to review and release the documents is extensive. First, staff review the material and remove personal documents like diaries and journals. Next, any documents which fall within the six exceptions undergo further review. The Archivist collects these documents and gives notice to the President under which the documents were created and the current President. Both have thirty days to determine whether to assert any sort of privilege over the documents, like attorney-client privilege or executive privilege.[2] If both Bush and Trump waive privilege, then the documents head to the Senate for their use. If either asserts a privilege, however, the Senate would then have to sue to secure the release of the records.

This process takes a tremendous amount of time. There is a workable solution to speed things up, however. The former President, and the people he designates, have immediate access to the documents. They can conduct their own review and waive privilege before the National Archives finishes their review. This is precisely the arrangement Senator Grassley and President Bush’s representative, attorney Bill Burck, came to. President Bush requested the entire collection referencing Brett Kavanaugh and had his representatives review the documents. Some documents they deemed to be personal, outside the scope of the Senate hearings, or protected by privilege. They sent these documents back to the National Archives to review the documents under their process. Other documents did not need any protection and could be released publicly. For these documents, they waived privilege (President Trump followed suit) and released the documents to the Senate with no restrictions.

Some of the documents were closer calls. They were not clearly privileged but were not clearly ready for public release. The documents fell within the six PRA exceptions. To avoid subjecting each document to a lengthy privilege analysis, Bush’s team agreed to expeditiously review the collection for the Senate’s use only. They agreed to provide these documents to the Senate on a condition of confidentiality. If a Senator wanted to release the document, they would ask President Bush to waive privilege. If President Bush agreed, the document could be released, if not, the document would go through the standard National Archives process which was happening concurrently.

The problem is timing. The National Archives process takes too long for Senators to review the documents before Kavanaugh’s confirmation hearing—assuming both Bush and Trump waive privilege. If either does not, an even longer court battle would begin. The alternative, however, places President Bush—and more troubling to some, Bill Burck, a colleague of Brett Kavanaugh—as the gatekeepers to what documents the Senate is entitled to review and release.

Whether the process was effective remains to be seen, but it was not an egregious departure from the law and likely found its roots not in partisanship, but in convenience.

[1]44 U.S.C. 2201 et. seq.

[2]74 FR 4669

The Beginning of the End for Chevron Deference?

The Beginning of the End for Chevron Deference?

Daniel Becker

The nomination of Judge Kavanaugh to fill the seat of the recently retired Justice Kennedy has set court watchers abuzz. Opinions have been written on the consequences of this change for abortion rights, gun rights, and presidential power. It would be unwise, however, to overlook a potential area of agreement between Justice Kennedy and potential Justice Kavanaugh: Their mutual skepticism of Chevron deference. Judge Kavanaugh’s elevation to the Supreme Court could add one more crucial vote to overturn or rework Chevron and mark a fundamental change in the Court’s deference to executive agencies.

Chevron deference, named after Chevron v. Natural Resources Defense Council, creates a two-step analysis of executive agency regulations. First, a court must determine whether the statute the agency is interpreting is ambiguous. If yes, then the court must determine whether the agency’s interpretation is reasonable. If the agency’s interpretation is reasonable, the court will defer to the agency. In extraordinary cases, courts have also applied a “major rules” test before engaging in Chevron analysis. The major rules test, or Chevron step 0, prevents agencies from issuing rules on major topics unless Congress clearly indicates the agency should resolve the issue. If Congressional intent to delegate to the agency on such a large question is absent or questionable, the Supreme Court will interpret the law itself without deferring to the agency.

Justice Kennedy, in one of his last opinions before announcing his retirement, expressed his skepticism of Chevron deference and how it was being applied in lower courts. Justice Kennedy wrote that “given the concerns raised by some Members of this Court it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”[1] His concurrence indicates that he saw serious separation of powers concerns with the way lower courts were applying Chevron deference.

Judge Kavanaugh appears to share Justice Kennedy’s skepticism of Chevron. One potential way for him to limit Chevron deference is to expand the major rules doctrine, which he has indicated a willingness to do. When confronted with the FCC’s reinterpretation of the Communications Act of 1996 to allow it to regulate the internet as a utility, Judge Kavanaugh dissented. Writing for himself, he would have held that the FCC did not have the authorization to make such a wide-ranging reinterpretation of its own statute. Foreshadowing Justice Kennedy’s concurrence in Pereira, Judge Kavanaugh found it a violation of the separation of powers to allow the FCC to issue such a sweeping reinterpretation of their own regulatory authority without action by Congress. His analysis relied on a strong interpretation of the major rules doctrine. Because the FCC reinterpretation was a major rule, and because the FCC had not received clear Congressional authorization to issue the reinterpretation, the rule was invalid.

Another potential reworking of the Chevron standard is to redefine what the Court will accept as a “reasonable” interpretation of an agency’s statute. Judge Kavanaugh has also expressed a willingness to limit what agency interpretations a court will consider “reasonable.” Chevron deference allows agencies to interpret vague statutes as long as the agency interpretation is a reasonable construction of the statute. In White Stallion Energy Center, LLC, for example, the EPA interpreted a statute to allow them to regulate electrical utilities without consideration of costs. The statute made no mention of costs, only that the agency could do what was “appropriate.” The D.C. Circuit upheld the EPA regulation. Judge Kavanaugh, however, dissented. It was unreasonable for the EPA to adopt a regulation which cost $9.6 billion dollars by the EPA’s own estimates without taking those costs into account, contrary to what the EPA and the majority said. Redefining what is “reasonable” marks the other potential path for a future Justice Kavanaugh to push the Court to limit Chevron deference.

A future Justice Kavanaugh would likely be one more vote to alter Chevron deference. The two paths outlined here, an expansion of the major rules doctrine and a change in what agency interpretations courts will accept as reasonable, would limit the circumstances agencies are entitled to Chevron deference without completely eliminating it. A more aggressive Supreme Court could eliminate Chevron deference entirely, as some state courts have done. Given the role Chevron plays in judicial evaluation of agency regulation, however, alteration seems to be more likely than abolition.

[1] Pereira v. Sessions, 585 U.S. ___ (2018) (Kennedy, J., concurring).

 

Women’s Reproductive Rights: One Step Forward, Two Steps Back?

Women’s Reproductive Rights: One Step Forward, Two Steps Back?

Briana Whalin

The day Justice Kennedy announced his retirement, a sadness washed over many Americans. Kennedy’s retirement, for those who are not politically conservative, felt like the last pillar of hope falling. After losing the White House to our current administration, moderates and liberals looked more than ever to the Supreme Court to be the voice of reason; a saving grace. Now, Kennedy’s retirement threatens to transport America’s public policy back decades.

Kennedy was initially nominated as President Reagan’s second choice. Reagan’s first nomination, Robert H. Bork, was rejected during his Senate confirmation hearing after his personality and ideology became too divisive in the eyes of the Senate. Justice Kennedy stood juxtaposed to Bork as the less conservative and more amenable choice. Soon after his nomination, he was sworn in as a Supreme Court Justice on February 18, 1988.[1]

Throughout his years on the Court, Kennedy gained the reputation as the “swing-vote” Justice.[2] His record stands as a pattern of siding with liberal Justices on individual rights questions and with conservative Justices on everything else. For example, he voted with conservative Justices on issues concerning campaign finance restrictions and gun-ownership rights.[3] However, he sided with liberal Justices on more than one occasion and often on landmark and divisive individual rights cases. These cases include, but are not limited to, decisions such as Obergefell v. Hodges and Planned Parenthood of Southeastern Pennsylvania v. Casey. Kennedy’s decision in these particular cases made him into a personified judicial barrier and voice or reason in the Court for liberal­-leaning Americans by ensuring protections for LGBTQ and Women’s Reproductive rights.

Now, looking forward, we await a new appointee from an administration bent on appointing an ultra-conservative Justice who will help overturn Roe v. Wade and restrict individual rights in the name of conservative beliefs and religious freedom. As a result, many women are seriously concerned that the Casey “undue burden” standard[4] will be restricted to the point of a virtual ban on abortion or a true overturning of Roe. These fears are fully justified as Pro-Life outlets are praising Kennedy’s retirement as an opportunity to overturn Roe[5] until the Court becomes a liberal majority again, which in the context of the Supreme Court could mean decades.

Further, let us remember: reproductive rights issues are public health issues. I have been fortunate to meet one of the plaintiffs in Roe and their experience makes it clear that overturning a woman’s right to a safe and legal abortion means forcing women to have dangerous and life-threatening abortions. The plaintiff in Roe that I met was forced to go out of the country, to a place where they did not speak the language, with a piece of paper with an address scribbled on it, to meet a doctor they had never met, in a place they had never been. Forcing women into this position is dangerous and again, is a public health issue. Abortions will happen regardless of its legal status in the United States as it did before Roe. Regardless of whether it is a virtual ban or full ban that may happen, all we can hope for is that the Justices see this as a public health issue to protect women and not a religious or political crusade.

[1] Anthony M. Kennedy, Oyez, (July 1, 2018), https://www.oyez.org/justices/anthony_m_kennedy.

[2] Brent Kendall & Jess Bravin, Justice Anthony Kennedy Defined His Career at Center of Biggest Decisions, Wall St. J., (July 1, 2018), https://www.wsj.com/articles/supreme-court-justice-anthony-kennedy-announces-retirement-1530122570. (Kennedy himself has said that he hates this moniker, commenting at a Harvard Law School graduation that, “[t]he cases swing. I don’t.”).

[3] Id.

[4] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[5] In an interview with NPR, the President of Students for Life, Kristan Hawkins, praised Justice Kennedy’s retirement as “a day that we’ve been waiting for” and further commented that “[o]ur goal in the pro-life movement has always been to make abortion illegal and unthinkable.” Sara McCammon, What Kennedy’s Retirement Means For Abortion Rights, Nat’l Pub. Radio, (July 1, 2018), https://www.npr.org/2018/06/28/624319208/what-justice-kennedy-s-retirement-means-for-abortion-rights.

Thank You, Justice Kennedy

Thank You, Justice Kennedy

Heather Stinson

Justice Kennedy is in the news due to his recent retirement announcement. Once again, many of those speaking or writing about him will mischaracterize his jurisprudence. To most, his voting patterns seem erratic and unpredictable. Yet, after all these decades, more than anyone else on the Court, Justice Kennedy has been uber-consistent and reliable. You would think that more people would better understand him, although a few seem to get it, as evidenced in the titles of some books regarding his jurisprudence. See, here, here, and here.

I became familiar with Justice Kennedy, like many law students, during the first few weeks of Constitutional Law. My professor introduced him to us by saying, “now for all of you libertarians and freedom lovers in the room, you are going to love Justice Kennedy,” and love him I did. His votes were on point with how I would have personally sided on each issue. More than that though, his words swept me up and for the time it took to read his opinion(s), I felt a sense of hope and optimism in the overall good of people. He made me love our Constitution, giving me a feeling that the structure and order it provided existed in perfect harmony, so as to preserve as much freedom as possible.

Many become confused over Justice Kennedy’s voting patterns; one minute he is authoring opinions that make him appear reliably conservative, and the next minute he is penning prose that would make most conservative voters cringe. I must admit, I too cringed when I first read the language he used in Obergefell v. Hodges: what he referred to as “Principles”. While I agreed with his vote, I was confused by his method of Constitutional Law and wondered if I had inadvertently wandered into a philosophy class. While I still have reservations about his methods, I can at least appreciate that to Justice Kennedy there is a point to the Constitution. There are, of course, the words and their dictionary definitions (where most conservatives begin and end), but there is also meaning behind the words chosen, the purpose of crafting the whole document in the first place. To Justice Kennedy, it’s not that the Constitution is ‘alive,’ as many on the left like to view it-subject to modern interpretation, with an updated dictionary. Rather, it is more like the original words and structure point to the Founders hope in penning it. Justice Kennedy simply showed us the fine tension that must exist between federal and state, and between state and person, to ensure that enough space exists in the in-between for breathing, which is a necessary requirement for life, and liberty.

It is ironic, that so many conservatives now feel excitement about the chance to get a true Constitutionalist onto the bench in his stead. Justice Kennedy is nothing but a Constitutionalist. It is also interesting that his votes are tracked, as if the Court has sportscasters, always trying to figure out his next move. I can hear them now saying, “this season he is batting conservative, with only two fly balls out in Left-field.” I can’t imagine how frustrating it has been to be known as some sort of watered-down, unreliable conservative, whose only purpose on the Court is to be persuaded to swing one way or the other. As it is, no one seems to know how to mention his name without also calling him the “swing vote.” See here and here, for a few recent examples.

History should not remember Justice Kennedy as a swing voter, a moderate, or a centrist. All of those descriptions fail to see him for what he has been, a major disappointment. He spent his career disappointing some side of the aisle every day. What I wouldn’t give to have another disappointment of a jurist put on the Court to take his place! We need jurists who have no cause, but the cause of liberty, as defined by the Constitution. Jurists whose personal beliefs and opinions are left at home while they handle the one piece of paper that we must all share. Justice Kennedy showed me that the structure of the Constitution whispers its function. He heard the whispers and shared them with us, and for that, I am grateful. As for the future appointment to the Court, all we can hope for are a few Congress men and women who will follow Justice Kennedy’s example, and be disappointments.

Justice Kennedy: Foot Soldier of the Federalism Revolution

Justice Kennedy: Foot Soldier of the Federalism Revolution

Daniel Becker

Justice Kennedy has written quite a few groundbreaking opinions in his career. Undoubtedly his most famous opinions are Lawrence v. Texas and Obergefell v. Hodges, both cases extending Due Process protections to LGBT people. But Justice Kennedy has also made enormous contributions to the revolution in the Court’s understanding of federalism. Justice Kennedy joined the majority repeatedly to prevent the federal government from treating the states as administrative appendages instead of co-sovereigns. He voted to create the anti-commandeering doctrine in New York v. United States, to preserve it in Printz v. United States, and to extend it in Murphy v. NCAA just this year. Justice Kennedy’s views on the subject can be found best in a decision he authored, Alden v. Maine.

In Alden v. Maine, Congress had authorized suits against states in their own state courts if the state violated the overtime provisions of the Fair Labor Standards Act. Maine protested, arguing that Congress had no power to authorize suits against the state of Maine in Maine’s own courts. Justice Kennedy, writing for the majority, sided with Maine in a strongly worded opinion supporting the sovereignty of states. Kennedy wrote that the Constitution protected the sovereign status of the states in two ways, first by reserving a substantial portion of power in the states, second by ensuring that the federal and state governments could act only upon people. The federal government could not act upon the states themselves. The principle that the government could not act upon the states themselves, but could only act upon the people, is an echo of the anti-commandeering doctrine which had been previously announced in New York v. United States.

Additionally, Kennedy tied the protection of state sovereignty to the original constitutional design. Looking at the history of the Eleventh Amendment, which prevents states from being sued in federal courts, Kennedy wrote that “Congress acted not to change but to restore the original constitutional design.” The Eleventh Amendment was a reaction to Chisholm v. Georgia, which allowed the state of Georgia to be sued in federal court. The Eleventh Amendment passed Congress and was ratified within a year. The majority understood the swiftness of passage to mean that the people had a very different understanding of the role of the states in the Constitutionally created federal system than the role of the states as understood by the Chisholm court. Thus, Kennedy provided a historical and originalist basis for state sovereign immunity. Sovereign immunity was not created by the Eleventh Amendment, but instead derived “from the structure of the original Constitution itself.”

Finally, Kennedy relied on precedent to show that the federal government could not save the law by appealing to the Necessary and Proper Clause. The Necessary and Proper Clause gives the federal government the choice of means to carry out its Art. I, §8 powers, but does not authorize them to use unlawful means of doing so. None of the Court’s precedents had ever found that an incidental infringement of a state’s sovereignty was a proper use of the Necessary and Proper Clause. Thus, Justice Kennedy cast his majority opinion as a rediscovery of founding principles instead of the judicial activism charged by the dissent.

Justice Kennedy’s opinion in Alden showed that he was a believer in the argument that the states had a vital role to play in the federal system the Constitution had created, that the Constitution intended them to play a vital role, and that they should be given the dignity and respect they deserved as co-sovereigns with the federal government. As he retires, the federalism revolution he helped usher in is well-accepted, having recently been reaffirmed in Murphy v. NCAA this past term.  While an overlooked area of his jurisprudence, Justice Kennedy should be seen as more than a necessary fifth vote in the federalism revolution which took place during the Rehnquist and Roberts Court.

Is Brexit the End of European Integration As We Know It?

Is Brexit the End of European Integration As We Know It?

Sam Poon

The United Kingdom’s secession (Brexit) from the European Union (EU) will forever shape the history of the UK and of European integration. While the full impacts of Brexit are unknown, Brexit is the actualization of latent discontent about extensive integration of the European continent. In part, Brexit signals deep dissatisfaction with the concept of free movement of peoples and more porous borders. However, Brexit does not necessarily signal a complete failure of European integration.

Brexit signals the first, and possibly only, ever substantial member state withdrawal from the EU.[1] Britain has always been wary of EU integration and its role as a supranational organization in Europe. The first serious talks of Brexit, as it is now conceived, began during David Cameron’s 2013 re-election campaign.[2] Playing at discontent with the EU, he promised to negotiate new terms with the EU and hold a referendum to let the citizens of the United Kingdom choose whether they want to stay in the EU under these new terms.[3] The Conservative Party unexpectedly won, David Cameron carried through on his promise, and eventually, the European Union Referendum Act of 2015 was introduced in Parliament.[4] Thus, the campaign for the UK’s future in the EU commenced.

The two main campaigns were colloquially known as the “Leave” or “Vote Leave”[5] and the “Remain”[6] campaigns, with their respective titles denoting the positions the campaigns took on Brexit. The Vote Leave campaign realized that their economic argument held little weight and shifted towards severe, anti-immigration rhetoric.[7] Leaders of Vote Leave asserted immigration and national sovereignty as the reason for a decline in economy, loss of jobs, terrorism, the migrant crisis, and more.[8] The simplified message was persuasive: remaining in the EU meant support of failed EU policies that perpetuated the migrant crisis, exhausted jobs, and drained money from the British economy. To paint a poignant picture, Nigel Farage, one of the campaign’s leaders, released a poster of thousands of seemingly Arab refugees coming to the EU.[9] The poster was captioned: “Breaking Point—the EU has failed us all,” and at the bottom, “we must break free of the EU and taken back control of our borders. Leave the European Union.”[10] It was clearly designed to illustrate that “swathes of brown-skinned foreigners were trekking towards Britain’s ‘open borders.’”[11] Thus, the Leave campaign had a simple, strong, xenophobic, and compelling message, albeit misleading and false.[12]

In contrast, the Remain campaign was unorganized, incoherent, and unable to create a singular message around Brexit, an immensely complicated issue.[13] On the defensive, the Remain campaign weakly stirred fear about economic risk.[14] The Remain campaign tried to combat the Leave campaign’s rhetoric with the fact that a withdrawal from the EU held infinite unknowns and potential repercussions. However, the anxiety that the Leave campaign stirred was not petered with the Remain campaign’s slogan of unknown risk of Brexit’s economic impact. In the end, the haphazard, poorly planned campaign failed. With the world watching, on June 23, 2016, the UK voted to leave the EU.[15] Leave won with 51.9,% to Remain’s 48.%, with approximately 71.8% of the population voting.[16] The Parliament confirmed the referendum results with the European Union Notification of Withdrawal Bill on March 13, 2017.[17]

The existence of the EU requires supremacy, free movement of people, and member states to cede a certain amount of state sovereignty. Ultimately, Brexit was the UK’s sign of dissatisfaction with the EU to some level, even if the Leave campaign played on xenophobia and relied on half-truths. However, the UK has always been skeptical of integration and even of the EU. This skepticism is demonstrated in the UK’s history of involvement leading up to the EU, refusal to join the Eurozone, and declination to take part in the Schengen Area. The Leave campaign wove together lies and misleading facts to create a strong message that was easy for voters to understand. Thus, though the results of Brexit are unpalatable, the history of the UK’s approach towards integration signaled a resistance to integration throughout the history of the EU.

Though Brexit will certainly change the trajectory of the UK, it does not signal the demise of European integration post-World War II. There are still organizations, member states, and non-EU countries that support the idea of integration. In fact, states are still seeking to join the EU as part of their national goals. Nevertheless, the EU should take note of the dissatisfaction leading to Brexit and attempt to seek understanding as to why Brexit was able to occur, particularly as it relates to the free movement peoples. The EU must be proactive about stamping out xenophobia and providing platforms for informed debate for its citizens. Doing so will prevent another Brexit, or Grexit, Spexit, Frexit, etc., and further the goals of integration well into the twenty-second century.

 

[1] Sans Greenland’s exit in 1985.

[2] David Cameron Promises In/Out Referendum on EU, BBC (Jan. 23, 2013), http://www.bbc.co.uk/news/uk-politics-21148282.

[3] Id.

[4] http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted

[5] See About the Campaign, Vote Leave, http://www.voteleavetakecontrol.org.

[6] See Britain Stronger in Europe, http://www.strongerin.co.uk/.

[7] Paul Stocker, Brexit and the Mainstreaming of the British Far Right, London School of Economics and Political Science (Oct. 5, 2017), http://blogs.lse.ac.uk/brexit/2017/10/05/brexit-and-the-mainstreaming-of-the-british-far-right/.

[8] Id.

[9] See Anealla Safdar, Brexit: UKIP’s ‘Unethical’ Anti-Immigration Poster, Al-Jazeera, (June 28, 2016) http://www.aljazeera.com/indepth/features/2016/06/brexit-anti-immigration-ukip-poster-raises-questions-160621112722799.html.

[10] See id.

[11] See Stocker, supra note 29.

[12] It is far easier to understand and join a simple, yet misleading message, while far more difficult to understand a complex but more accurate message. Similarly, it is easier to create a xenophobic, false message, but more difficult to craft a coherent, accurate message that takes into account nuances of reality.

[13] See Tortsen Bell, The Referendum, Living Standards and Inequality, Resolution Foundation (June 24, 2016) http://www.resolutionfoundation.org/media/blog/the-referendum-living-standards-and-inequality/ (“The legacy of increased national inequality in the 1980s, the heavy concentration of those costs in certain areas, and our collective failure to address it has more to say about [Brexit] than shorter term considerations from the financial crisis or changed migration flows.”).

[14] See Rafael Behr, How Remain Failed: the Inside Story of a Doomed Campaign, The Guardian (July 5, 2016), https://www.theguardian.com/politics/2016/jul/05/how-remain-failed-inside-story-doomed-campaign.

[15] Alex Hunt & Brian Wheeler, Brexit: All You Need to Know About the UK Leaving the EU, BBC (Sept. 26, 2017) http://www.bbc.com/news/uk-politics-32810887.

[16] Id.

[17] Id.