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Editorial Note – Samantha Hodgson
Dissenting Opinion of the late Supreme Court Justice Antonin Scalia
The late Justice Antonin Scalia maintained the position that Roe v Wade “fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” This Justice was against “the abortion-umpiring” business to which the Court was now accustomed. In 2020, June Medical Services, LLC v Russo (formerly Gee) brings to the Court the same argument that states and practitioners have had since Roe. The opinions of Justice Scalia give a different perspective to the decade long argument. His manner of thinking often contradicts that of his colleagues.
Editorial Note – Samantha Hodgson
Supreme Court Justice Amy Coney Barrett has taken part in her first abortion related case since her joining SCOTUS. Her decision formed part of the majority who provided little reason for their grant of the Governments application for stay. Chief Justice Roberts, concurring in the grant of application for stay, said that the question here was not whether the FDA imposed an undue burden on those seeking abortion medication, but whether the district court correctly ordered the FDA to lift the requirement for women to continue obtaining the drug mifepristone in person during the COVID-19 pandemic. Chief Justice Roberts said that the ruling of the majority was one that deferred to the view of experts.
Justice Sotomayor formed the dissenting opinion for which Justice Kagan joined. Justice Breyer would deny the application for stay. Justice Sotomayor argues that the government did not meet the exceptional standard of proof required to grant an application for stay and that the FDA did in fact place an undue burden on women seeking abortion medication during the COVID-19 Pandemic.
Justice Gorsuch delivered the 6-3 majority judgment (Roberts CJ, and Ginsburg, Breyer, Sotomayor, and Kagan JJ joining, Alito J, Thomas J, Kavanaugh J dissenting) in Bostock v Clayton County, extending the protection of the Civil Rights Act of 1964 to gay and transgender discrimination. His Honour opened:
“Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
Maggie Haney v USA Gymnastics, Inc. and Mark Busby
United States District Court – District of New Jersey
Case 3:21-cv-07213-AET-LHG
Maggie Haney v USA Gymnastics, Inc. and Mark Busby
United States District Court – District of New Jersey
Case 3:21-cv-07213-AET-LHG
On 29 March 2021, Maggie Haney filed a Complaint against USA Gymnastics, Inc. and Mark Busby, claiming the following:
Count I: for a declaratory judgment under the Sports Act that (in summary):
Count II: for money damages under the Sports Act.
Count III: for Vacatur of the Arbitrator’s Award under the FAA.
On 2 August 2021, the defendants (USAG, and Busby) filed a Motion to Dismiss saying as follows:
The Motion to Dismiss is opposed by Haney, the parties are now to agree a Schedule to brief and present oral argument to the court.
The US Supreme Court has ruled that the Department of Homeland Security (DHS) decision to rescind the Deferred Action for Childhood Arrivals (DACA) program is reviewable under the APA, that DHS’s decision to rescind DACA was arbitrary and capricious within the meaning of the Administrative Procedure Act (APA) in that the relevant decision was the decision made at the time (not later reasoning adopted to validate that decision), that the DHS rescission memorandum failed to consider important aspects of the problem before the agency thereby failing to supply the requisite “reasoned analysis”, and, for good measure, the decision-maker had failed to address whether there was “legitimate reliance” on the DACA Memorandum. Accordingly, the court ruled that the DHS Acting Secretary Duke’s rescission of DACA must be vacated.
In 2012, DHS (during the Obama administration) announced DACA, a program that would allow young people who had entered the United States as children to apply for a 2 year forbearance of removal, subject to renewal. Applicants had to be under age 31 in 2012, had continuously resided in the USA since 2007, were current students, had completed high school, or were honorably discharged veterans, had not been convicted of any serious crimes, and did not threaten national security or public safety. DHS said that individuals who met those criteria warranted favorable treatment under the immigration laws because they “lacked the intent to violate the law,” were “productive” contributors to society, and “know only this country as home.” Those granted such relief were also to be eligible for work authorization and various federal benefits. Around 700,000 aliens applied. But in 2017, DHS (during the Trump administration), in a decision memorandum from DHS Acting Secretary Duke, Based solely on Attorney-General Sessions’ advice that the DACA program was unlawful, announced that DHS was terminating the DACA program. The termination was challenged by multiple groups, principally on the grounds that Acting Secretary Dule violated the APA by failing to adequately address important factors bearing on her decision.
In November 2014, two years after DACA was promulgated, DHS announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, to expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to 3 years. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA recipients. Before the DAPA Memorandum was implemented, however, 26 States, led by Texas, sued, arguing that DAPA violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the Executive’s duty under the Take Care Clause of the Constitution.
Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities. Three months later, in September 2017, Attorney General Sessions wrote to DHS, advising that DHS should rescind DACA as well. In a rescission memorandum, DHS Acting Secretary Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General’s letter, and concluded that the DACA program should be terminated.
In NAACP, in April 2018, the D. C. District Court granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.” The District Court stayed its order for 90 days to permit DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” In June 2018, DHS Secretary Nielsen, set out in a further decision memorandum, three reasons why, in Secretary Nielsen’s estimation, “the decision to rescind the DACA policy was, and remains, sound.” First, Secretary Nielsen said that, “as the Attorney General concluded, the DACA policy was contrary to law.” Second, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questionable” policies. Third, Secretary Nielsen identified multiple policy reasons for rescinding DACA, including (1) the belief that any class-based immigration relief should come from Congress, not through executive non-enforcement, (2) DHS’s preference for exercising prosecutorial discretion on “a truly individualized, case-by-case basis”, and (3) the importance of “projecting a message” that immigration laws would be enforced. In her final paragraph, Secretary Nielsen acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “outweigh the questionable legality of the DACA policy and the other reasons” for the rescission discussed in her memorandum.
Chief Justice Roberts delivered the 5-4 majority judgment (Ginsburg, Breyer, Sotomayor, and Kagan JJ joining, Alito, Thomas, Gorsuch and Kavanaugh JJ dissenting). Hail the (real) Chief.
The dispute before the Court was not whether DHS could rescind DACA, all parties agree that it may, rather the substantive dispute was whether DHS had followed the required procedure within the meaning of the APA. The Chief Justice wrote:
The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” …. It requires agencies to engage in “reasoned decisionmaking” …. and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” …. Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” …. but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” …
The majority first concluded that DHS’ decision was reviewable under the APA:
The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action…. That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review, … or that the “agency action is committed to agency discretion by law,” …. The latter exception is at issue here…
The Government contends that a general non-enforcemen tpolicy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government argues, the agency must balance factors peculiarly within its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable.
But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. …. Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. …. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” ….. And the result of these adjudications—DHS’s decision to “grant deferred action,” …. is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” ….. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.”….
The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. …. Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.” ….
Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA.
The majority then concluded that the June 2018 DHS decision memorandum could not justify the September 2017 DHS decision (“It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.”)
Finally, the majority concluded that the September 2017 DHS decision to rescind the DACA program was arbitrary and capricious within the meaning of the APA.
…. Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. ….
In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” …. But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.
.… Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. …. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” …. the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy, ….
The Government acknowledges that “[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands.” ….. It insists, however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there maybe a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.
…. For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and provided benefits only in two-year increments. Reply Brief 16–17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opinion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such consideration in the Duke Memorandum.
Respondents and their amici assert that there was much for DHS to consider. They stress that, since 2012, DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA program. …. The consequences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. …. (estimating that hiring and training replacements would cost employers $6.3 billion).
The majority concluded:
We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” …. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew …..
In Committee on the Judiciary of the US House of Representatives v Donald F McGahn II , the Committee on the Judiciary of the US House of Representatives was seeking to enforce a Subpoena to Appear served on former White House Counsel, Don McGahn II, in the US District Court for the District of Columbia, before United States District Judge Ketanji Brown Jackson. The US Department of Justice (DOJ) opposed the order, arguing that the Judiciary Committee has no right to enforce its subpoenas against senior level presidential aides in federal court, that federal courts have no jurisdiction over such enforcement claims, and, critically, that such senior level presidential aides have absolute immunity from testifying where the President orders them not to do so. Judge Jackson rejected the DOJ arguments, and ordered Mr McGahn to testify.
The issues were articulated by Judge Jackson:
The merits legal issues that the instant dispute between the House Judiciary Committee and the Executive branch raises are straightforward. The Committee claims that it has issued a lawful subpoena to former White House Counsel Donald F. McGahn II …; that McGahn has refused to appear before the Committee to provide testimony as required …. ; and that “[t]here is no lawful basis for McGahn’s refusal to appear before the Judiciary Committee”…). For its part, DOJ asserts that, consistent with its understanding of the longstanding view of the Department’s Office of Legal Counsel, there is a lawful basis for McGahn’s defiance of the Committee’s valid subpoena: the President has ordered him not to. … DOJ asserts that current and former senior-level presidential aides have “absolute testimonial immunity” from compelled congressional process, as a matter of law; therefore, if the President invokes “executive privilege” over a current or former aides’ testimony—as he has done with respect to McGahn—that aide need not accede to the lawful demands of Congress. …
Judge Jackson wasn’t buying the DOJ arguments. Her Honour found as follows:
A. Federal Courts Have The Power To Adjudicate Subpoena-Related Disputes Between Congress And The Executive Branch
1. Federal Courts Routinely Exercise Subject-Matter Jurisdiction Over Subpoena-Enforcement Claims Under 28 U.S.C. § 1331
2. Separation-Of-Powers Principles Do Not Compel The Conclusion That This Court Lacks Subject-Matter Jurisdiction Over The Instant Dispute
a. The legal claim at issue here is not non-justiciable
b. The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning compelled congressional process
DOJ argued that: “centuries of historical practice” … plainly demonstrates that the U.S. Constitution does not contemplate that the federal courts have the power to exercise jurisdiction over subpoena-related disputes between the Congress and the Executive branch. Her Honour rejected that argument, referring to Watkins v. United States 354 U.S. 178 (1957), in which then US Supreme Court Chief Justice Earl Warren had set out a: detailed and remarkable story of the legislative power of inquiry as it existed in seventeenth century England, and in particular, of Parliament’s “broad and varied use of the contempt power” to enforce its own mandates, as well as its reservation unto itself of “absolute and plenary authority over . . . privileges[,]” Judge Jackson then noted Chief Justice Warren’s view in relation to the US courts:
… Fatefully, and importantly, the Houses of Parliament expressly decided that “judicial review of the exercise of the contempt power or the assertion of privilege” would be “precluded[,]” id. at 188. And apparently as a direct consequence of Parliament’s determination “that no court had jurisdiction to consider such questions[,]” the unreviewable contempt power that Parliament had claimed was, predictably, “abused.” … Significantly for present purposes, Chief Justice Warren takes care to emphasize that, “[i]n the early days of the United States, there lingered direct knowledge of the evil effects of absolute power[,]” id. at 192, and thus, “[f]rom the very outset the use of contempt power by the legislature was deemed subject to judicial review[,]” … This is a much different narrative about the historical understanding of the ability of the courts to entertain claims concerning the enforceability of a legislative subpoena than DOJ offers here…. Watkins also touched upon the fact that the Supreme Court had previously considered the competing interests of the Executive and the Legislature with respect to subpoenas pertaining to legislative investigations, and had suggested caution with respect to the merits of claims that the Congress had overstepped its bounds, given “the danger to effective and honest conduct of the Government if the legislature’s power to probe corruption in the executive branch were unduly hampered.” Id. at 194–95 (first citing McGrain, 273 U.S. at 194–95, and then Sinclair, 279 U.S. at 263). This, too, indicates that the Supreme Court’s primary concern about the exercise of judicial authority was that judges might be too aggressive concerning the remedies they ordered with respect to adjudicating challenges to compelled congressional process, not that the federal courts lacked the authority to even entertain such claims. Consequently, DOJ’s present suggestion that the history of our constitutional Republic simply does not contemplate that the other branches of government would enlist the Judiciary to resolve disputes over the scope of compelled congressional process in the context of legislative investigations—and thus that a federal court oversteps its bounds if it exercises subject-matter jurisdiction over a claim like the one the Judiciary Committee brings here …. seems inconsistent with Watkins’s clear assessment that the federal courts of the United States have always had to power to review legal claims with respect to subpoena-enforcement actions, and once again, it is well established that subject-matter jurisdiction generally turns on the legal claim being asserted regardless of who makes it. Indeed, the Watkins Court specifically noted that federal courts possess a “responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly[,]” id. at 198–99, while at the same time, they must take care to provide “ample scope . . . to the Congress as the sole constitutional depository of legislative power[,]” id. at 215; see also, e.g., id. at 216. And DOJ does not, and apparently cannot, explain why this constitutional duty disappears, or is neutralized, if the subpoena-related dispute arises between branches of government, rather than between Congress and an individual party who contends that the Legislature’s compelled congressional process is unlawful.
c. Traditional separation-of-powers principles do not support DOJ’s suggestion that the federal courts cannot resolve legal disputes between the other branches of government
B. House Committees Have The Power To Enforce Their Subpoenas In Federal Court When Executive Branch Officials Do Not Respond As Required
a. Defiance Of A Valid Subpoena Indisputably Qualifies As A Cognizable Injury In Fact, And In The Context Of Congressional Investigations, The Harm Is Significant And Substantial
b. The Constitution Itself Provides A Cause Of Action For A Thwarted House Committee To Proceed In Federal Court
c. There Is No Separation-Of-Powers Impediment To The Judiciary Committee’s Seeking To Vindicate Its Rights In Federal Court
2. The President Does Not Have The Power To Prevent His Aides From Responding To Legislative Subpoenas On The Basis Of Absolute Testimonial Immunity
a. Miers Squarely Rejects The Argument Senior-Level Presidential Aides Enjoy Absolute Testimonial Immunity
(Her Honour referred to the 2008 Federal Court decision in relation to former Clinton administration White Counsel Harriet Miers and Chief of Staff Joshua Bolten, Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), The Clinton DOJ had made the same arguments then as were made by the Trump DOJ now. Judge Jackson: “The more things change, the more they are the same.” Judge Jackson noted that, in Miers, the District Court had considered each of the same arguments, and rejected each one in a lengthy opinion:
…. Most importantly, the Miers opinion also persuasively demonstrated that DOJ’s conception of the limited power of both Congress and the federal courts relative to the expansive authority of the President—which, purportedly, includes the power to shield himself and his aides from being questioned about any aspect of their present or former White House work—is not grounded in the Constitution or in any other federal law.
b. OLC’s Long-Held View That Senior-Level Presidential Aides Have Absolute Testimonial Immunity Is Neither Precedential Nor Persuasive
(Her Honour referred to, and rejected, the DOJ argument that senior level presidential aides have absolute testimonial immunity, dating back to the 1971 Memorandum from William H. Rehnquist, then Assistant Attorney General, Office of Legal Counsel, later US Supreme Court judge and then US Supreme Court Chief Justice, to John D. Ehrlichman, Nixon administration Assistant to the President for Domestic Affairs, Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff”, saying:
it is certainly true that (DOJ’s Office of Legal Counsel) OLC has long been of the view that senior-level presidential aides have absolute testimonial immunity; indeed, as Miers indicates, the first recorded statement of the agency that specifically commits this view to writing was authored in 1971. See Mem. from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, to John D. Ehrlichman, Assistant to the President for Domestic Affairs, Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff” (Feb. 5, 1971) (“1971 Memorandum”). In that year, then-Assistant Attorney General William Rehnquist produced a memorandum on the point that maintained (without direct citation) that “[t]he President and his immediate advisers—that is, those who customarily meet with the President on a regular or frequent basis—should be deemed absolutely immune from testimonial compulsion by a congressional committee.” Id. at 7. This OLC memorandum further indicated that such persons “not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee.” Id. But, of course, as definitive as this statement of law sounds, OLC serves as legal counsel to the Executive branch, and “the Executive cannot be the judge of its own privilege[.]” Miers, 558 F. Supp. 2d at 106. Consequently, its statement of the law is “entitled to only as much weight as the force of [its] reasoning will support.” Id. at 104.
In this Court’s view, the persuasiveness of OLC opinion that senior-level presidential aides enjoy immunity from compelled congressional process turns on two familiar factors: the authority that is provided in support of this proposition, and the reasons that are provided for why the author reached this conclusion. With respect to the first consideration, it cannot be overstated that the 1971 Memorandum does not cite to a single case that stands for the asserted proposition, and the ten-plus subsequent statements by OLC that DOJ points to in support of this immunity simply reference back to the 1971 Memorandum without providing any court authority. It goes without saying that longevity alone does not transform an unsupported notion into law.
As for the logic behind the view, the original memorandum appears to reason by … analogy. It begins by recognizing the breadth of Congress’ power of inquiry, which admittedly “carries with it the power to compel the testimony of a witness.” 1971 Mem. at 1. And then as if providing the solution to a problem that it had not yet identified, the memo states that “if White House staff personnel are to be exempt from appearing or testifying before a congressional committee, it is because they have some special immunity or privilege not accorded others.” Id. at 1. The remainder of the 8-page document devotes itself to developing potential reasons for such a privilege. It suggests, for example, “a certain analogy to judicial proceedings[,]” in which a “distinction” is made “between a claim of absolute immunity from even being sworn in as a witness, and a right to claim privilege in answering certain questions in the course of one’s testimony as a witness.” Id. at 4.
Ultimately, the 1971 Memorandum pushes for the former, on the basis of a handful of historical examples in which former assistants to various Presidents blatantly refused to appear before Congress in response to a legislative subpoena. See id. at 5–6. At least one of these folks was apparently polite enough to write a letter to the committee that “grounded his refusal on the confidential nature of his relationship with the President.” Id. at 5. But others merely sent congressional subpoenas back with the simple statement that “[i]n each instance that President directed me, in view of my duties as his Assistant, not to appear before your subcommittee.” Id. at 5; see also id. at 6.
Tellingly, the 1971 Memorandum does not purport to suggest that the law already countenanced such behavior. Rather, the posture of the Memorandum appears to be a policy piece that provides its client with arguments for why it should be thus. Moreover, as Miers notes, Rehnquist admitted that “his conclusions [were] ‘tentative and sketchy,’” Miers, 558 F. Supp. 2d at 104 (quoting 1971 Mem.at 7), and in his later role as a Supreme Court Justice, he “apparently recanted those views[,]” id. In one especially candid moment in the text of the Memorandum, Rehnquist admits that the historical precedents for refusing a congressional subpoena “are obviously quite inconclusive” but that “[i]n a strictly tactical sense, the Executive Branch has a headstart in any controversy with the Legislative Branch, since the Legislative Branch wants something the Executive Branch has, and therefore the initiative lies with the former.” 1971 Mem. at 7. He continued: “[a]ll the Executive has to do is maintain the status quo and he prevails.” Id. It is not surprising that, per this initial internal effort to establish the ways in which certain White House staff could prevail in any conflict with Congress over their legally enforceable duty to appear for testimony when subpoenaed, OLC subsequently developed an entire series of statements, each of which references the 1971 Memorandum, but none of which specifically acknowledges that the initial basis for this conclusion was seemingly formed out of nothing.28
In fairness, over time, the initial take on absolute testimonial evolved. It appears that OLC’s subsequent statements in support of this proposition were beefed up with various other reasons for why one could plausibly assert that certain aides of the President should be absolutely immune from having to testify before Congress, which reasons largely invoke constitutional separation of powers concerns, including potential harassment of the aides (and thus, the President), the risk of disclosure of information covered by executive privilege, and the appearance that the Executive branch is subordinate to the Legislature. ….
But, unfortunately for DOJ, its mere recantation of these aspirational assertions does not make the proposition any more persuasive, and in fact, given the history of how OLC’s opinion has developed, it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit. Furthermore, because there are few, if any, well-formulated justifications for categorically excusing current and former senior-level presidential aides from responding to compelled congressional process, it would be difficult to do so consistent with existing case law, traditional norms of practice under our constitutional system of government, and common sense.
c. There Is No Principled Basis For Concluding That Senior-Level Presidential Aides Should Have Absolute Testimonial Immunity
Judge Jackson rejected the DOJ argument that, on principle, senior level presidential aides should have absolute testimonial Immunity. DOJ argued that, firstly the President has absolute testimonial immunity from congressional process, and secondly, as a derivative matter, so too must immediate advisers to the President, with whom the President meets on a regular or frequent basis, have such absolute testimonial immunity from congressional process. Her Honour rejected the first claim, agreeing with Miers assessment of United States v. Nixon, Clinton v. Jones, and Harlow v. Fitzgerald. Separately, Her Honour rejected the principled justifications argued by DOJ (including, that this was akin to immunity from civil damages for legislators, that absolute immunity would facilitate frank communications in the White House, that without absolute testimonial immunity government would grind to a halt, and that absolute testimonial immunity is consistent with the separation of powers doctrine). Her Honour concluded:
DOJ’s assertions about the chilling effect of compelled congressional process also imply that congressional questioning is needlessly intrusive and unwarranted, and that characterization drastically discounts the reasons why executive branch officials, including members of the President’s staff, are called to testify. As the Supreme Court has suggested on numerous occasions, Congress brings in witnesses not as punishment, but to provide the Legislature with the information that it needs to perform its critical legislative and oversight functions. Watkins, 354 U.S. at 187; McGrain, 273 U.S. at 17 ….
d. Concluding That Presidential Aides Enjoy Absolute Testimonial Immunity At The President’s Discretion Conflicts With Core Constitutional Norms
Her Honour said, in relation to the DOJ claim that it is the President who controls whether such aide provides any testimony whatsoever:
Finally, the Court turns to DOJ’s contention that, quite apart from the accepted ability of a President to invoke executive privilege to protect confidential information during the course of aides’ testimony before Congress, as a matter of law, it is the President who controls whether such aide provides any testimony whatsoever. During the motions hearing, DOJ’s counsel repeatedly emphasized that the power to invoke absolute testimonial immunity with respect to current and former senior-level aides belongs to the President…. (“[T]he President owns the privilege here. So he is the owner of Mr. McGahn’s absolute immunity from compulsion[.]”) … (“[T]he President owns the privilege as to former officials with the same vigor with which he owns it to current officials.”), …. (maintaining that immunity is “the President’s to assert”).) And when asked whether this power of the Executive is limited to such aides’ communications with Congress in particular, or also extends to preventing his aides from speaking to anyone else (e.g., the media) even after their departure from the White House, counsel indicated that while the Executive branch has “not taken a position on that,” it was “definitely not disclaiming that.” …. This single exchange—which brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life—highlights the startling and untenable implications of DOJ’s absolute testimonial immunity argument, and also amply demonstrates its incompatibility with our constitutional scheme. …. Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.
…. with the exception of the recognized restrictions on the ability of current and former public officials to disclose certain protected information, such officials (including senior-level presidential aides) still enjoy the full measure of freedom that the Constitution affords. Thus, DOJ’s present assertion that the absolute testimonial immunity that senior-level presidential aides possess is, ultimately, owned by the President, and can be invoked by the President to overcome the aides’ own will to testify, is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.
Judge Jackson concludes as follows:
…. The United States of America has a government of laws and not of men. The Constitution and federal law set the boundaries of what is acceptable conduct, and for this reason, as explained above, when there is a dispute between the Legislature and the Executive branch over what the law requires about the circumstances under which government officials must act, the Judiciary has the authority, and the responsibility, to decide the issue. Moreover, as relevant here, when the issue in dispute is whether a government official has the duty to respond to a subpoena that a duly authorized committee of the House of Representatives has issued pursuant to its Article I authority, the official’s defiance unquestionably inflicts a cognizable injury on Congress, and thereby, substantially harms the national interest as well. These injuries give rise to a right of a congressional committee to seek to vindicate its constitutionally conferred investigative power in the context of a civil action filed in court.
Notably, whether or not the law requires the recalcitrant official to release the testimonial information that the congressional committee requests is a separate question, and one that will depend in large part on whether the requested information is itself subject to withholding consistent with the law on the basis of a recognized privilege. But as far as the duty to appear is concerned, this Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance.
….. This result is unavoidable as a matter of basic constitutional law, as the Miers court recognized more than a decade ago. Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth. Nor is the power of the Executive unfairly or improperly diminished when the Judiciary mandates adherence to the law and thus refuses to recognize a veto-like discretionary power of the President to cancel his subordinates’ legal obligations. To the contrary, when a duly authorized committee of Congress issues a valid subpoena to a current or former Executive branch official, and thereafter, a federal court determines that the subpoenaed official does, as a matter of law, have a duty to respond notwithstanding any contrary order of the President, the venerated constitutional principles that animate the structure of our government and undergird our most vital democratic institutions are preserved.
Judge Jackson can really write. This an awesome judgment. DOJ has already filed an appeal, it will be fascinating to see how far up the issue goes. Interestingly, this subpoena was served in relation to the Mueller Report, no doubt principally in relation to the obstruction of justice conclusions by Robert Mueller. But we are nearly certain to see these principles come into play in relation to the current Ukraine-related impeachment process.
