The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Paul Rosenzweig and Vishnu Kannan offer a "post-Trump agenda" for repairing the rule of law. I do not agree with every item on the list, and might suggest the addition of a few other items, but agree that these sorts of reforms should be at the top of Congress' agenda after the next election. And while styled as a "post-Trump" agenda, these reforms would be worth trying to enact whether or not Trump is reelected this Fall.
Rosenzweig and Kannan's list consists of the following reforms (each of which is described in more detail in their piece):
- Reform of the Federal Vacancies Reform Act to prevent perpetual "acting" appointments.
- Mandatory disclosure of presidential candidate tax returns and strengthening of presidential financial disclosure.
- Redefining "emergency" authority to limit such declarations generally.
- Clearer prohibitions on reprogramming funds.
- Enhanced inspectors general protection.
- Statutory protection for special counsels to allow challenge to removal.
- Overturn Franklin v. Massachusetts.
- Define emoluments violations and create a right of action.
- Automatic Hatch Act penalties.
- Minimum qualifications for White House staff.
- Expediting judicial review of congressional demands for records in relation to oversight and impeachment.
- Mandatory federal agent identification.
- Enhanced whistleblower protection to prevent retaliation in the intelligence community.
- Permit the intelligence community inspector general to report directly to Congress without going through the general counsel of the Office of the Director of National Intelligence.
- D.C. statehood.
- Pardon reform.
- Disqualification of family for POTUS.
While I am not entirely comfortable with some of the proposed limitations on core executive power – such as enhanced limitations on removal over treating the President like an agency (by overturning Franklin v. Massachusetts) – these are reforms that should nonetheless be considered. I am also not convinced that D.C. Statehood is a good idea (though I could support turning much of the district into a newly created Douglass County, Maryland), and I am even less convinced it would be a "rule of law" reform.
In addition to the ideas they propose, I would suggest a few others, including a statute to operationalize the 25th Amendment, so as to clarify how that Constitutional provision could be invoked, should the need arise. I would also encourage further reforms of the Freedom of Information Act to reverse the presumption many agencies have against the disclosure of internal materials and mandate greater information collection and disclosure related to rule of law questions. While curtailing grants of emergency power are a good idea, I would go farther and encourage Congress to time-limit most grants of delegated authority to the executive branch (for reasons that extend well beyond the abuses of the Trump Administration, and are detailed in this paper with Chris Walker). Finally, I would also encourage Congress to make impeachment-related inquiries a permanent part of the jurisdiction of the House and Senate oversight committees.
I am sure there are still more reforms that would help repair the rule of law. It is not too early to start thinking about what reforms would be wise, as these sorts of measures should be the first order of business when Congress reconvenes after the election (if not before).