The Volokh Conspiracy
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Presidential Shackling
When the outgoing administration tries to bind the incoming administration.
In my 2017, I identified four species of high-level influence, which I described as "presidential maladministration."
First, [Presidential Reversals] where an incoming administration reverses a previous administration's interpretation of statute, simply because a new sheriff is in town, courts should verify if the statute bears such a fluid construction. Second, [Presidential Discovery] where an administration discovers a heretofore unknown power in a statute that allows it to confer substantive rights, courts should raise a red flag, especially when the authority exercised was one Congress withheld. Third [Presidential Nonenforcement], where an administration declines to enforce a statute that Congress refuses to repeal, under the guise of prosecutorial discretion, courts should view the action with skepticism. Fourth [Presidential Intrusion], where evidence exists that the White House attempted to exert its influence and intrude into the rule-making process of independent agencies, courts should revisit the doctrine concerning altered regulatory positions.
The transition from the Trump to the Biden administration has shined a light on a fifth species of presidential maladministration. I'll call it Presidential Shackling.
Shortly before January 20, the executive branch signed different agreements that limited its discretion. The obvious import of these agreements was to handcuff to incoming Biden Administration. For example, the Department of Homeland Security signed an agreement with Texas. Under the terms of this provision, DHS must give advance notice to Texas before making any changes to immigration policy. And DHS must consider Texas's views when making changes to immigration policies. The upshot is that the Biden Administration cannot change immigration policies without Texas's consultation.
The New York Times reported that DHS signed a similar agreement with the Immigration and Customs Enforcement Union.
One clause in the contract requires homeland security leaders to obtain "prior affirmative consent" in writing from the union on changes to policies and functions affecting agents. It also appears to allow the ICE union to argue that it can reject changes such as Mr. Biden's recent order to focus on violent criminals and not prioritize other undocumented immigrants.
…
One of the agreements, for example, says: "No modifications whatsoever concerning the policies, hours, functions, alternate work schedules, resources, tools, compensation and the like of or afforded employees or contractors shall be implemented or occur without the prior affirmative consent" in writing by the union.
Health and Human Services signed a similar agreement with red states. Now, changes to Medicaid could trigger further litigation.
Soon enough, the courts will have to consider the validity of these agreements. In the abstract, the executive branch often reaches settlement agreements that limits its own discretion. But the intent here is to shackle the next administration.
What happens next? I can think of three options. First, the Biden Administration can treat these agreements as ultra vires. For example, Ken Cuccinelli lacked the authority to enter into these agreements. But the decision to ignore these agreements could trigger litigation over their validity, and Cuccinelli's status. And that litigation can take time. Second, the Biden Administration could move to rescind these agreements. But the decision to terminate the agreement is a tacit recognition that the agreements are valid. And under Regents, the courts can scrutinize all changes in policy. Third, the Biden Administration can say these agreements interfere with his ability to take care that the laws are faithfully executed. Therefore, they can be ignored.
My guess is the Biden Administration will choose a combination of the first two approaches.
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An outgoing administration that generally regarded public employee unions as a species of pond scum (see, e.g., teachers), acting through an unlawfully serving employee, outsources immigration policy to an ICE employee union in a CBA. Who said there’s no cure for irony deficiency anemia?
That seems like a very clever update to the tactic of consent decrees.
Just this time it’s an outgoing administration instead of an NGO.
The Obama Administration did something similar with various Consent Decrees, often negotiated with Democrats who were able to force spending on their constituents and bind their successors.
Why be vague? If you can’t be specific, why present President Obama and Democrats as being as indecent and corrupt as Republicans? We’re way past the point of “both sides are to blame.”
It seems your stance is tainted with antipathy. Consent-decree signatories have nothing to do with political parties or pork spending. And they bind presidential successors because of the years needed to effect and sustain change. There is no nefarious agenda, unlike Trump’s shenanigans of bogus two-year for-cause contracts with political appointees who morphed into career employees, trashing the Administrative Procedures Act to further ruin the nation with illegitimate rules. and prohibiting executive-branch employees from meeting with Biden’s transition team, even after he publicly announced they could (on the off chance Trump wouldn’t remain president, of course).
Consent decrees have long been used to hold feet to fire, whether the feet are the federal government’s (eg, Flores agreement) or not. The Obama Justice Department signed 15 consent decrees with local police departments. The Trump administration did none, and those of the Obama administration it didn’t nix were woefully unenforced, allowing bad cops to stay on the job, even with their own police department wanted them fired for excessive force. Trump traded police union endorsements for Americans’ lives.
Presidential Shackling may be a problem but I’m not sure why you think that the transition from Trump to Biden is shining any kind of special light on it. That’s exactly what Obama did with the Paris Climate not-a-Treaty.
It’s something that every lame-duck politician has at least attempted since, well, probably since that term was invented.
“That’s exactly what Obama did with the Paris Climate not-a-Treaty.”
Um, no: because it was not-a-treaty, the Trump administration was entirely free to reject it, which it did. You can’t have shackling without shackles.
If it’s not a treaty, then there is no authority to alter laws and/or regulations to comply with it.
Except executive discretion.
Sadly, Trump did NOT entirely reject it. He purported to follow the process for exiting the treaty, as though it were binding.
Where he should have simply forthrightly stated that, as an unratified treaty, we were never party to it in the first place, and there was nothing to exit.
I agree with your analysis but if I had been advising the President, I would have suggested that he also send it to the Senate for a vote on ratification where it would have almost certainly been defeated. That would have shown a respect for the Senate’s role in foreign policy when it comes to policy-making via binding agreements with other nations which would probably have helped build a better relationship with that body for a new administration. It would have also forced Senate Democrats into either voting for provisions that would have been unpopular with their voters or against a treaty that would have been popular with their overall base. Finally if the Senate votes to reject this “agreement” rather than just the President, it makes it far more difficult for the next President to try to do something similar when the world sees that Presidents really don’t have that kind of power.
Um, no.
The United States first agreed to the Paris Agreement in December 2015 and formally joined in September 2016.
I know Republicans like to think Obama became a lame-duck president in late 2015, but reality says otherwise.
And there is no equivalence between (1) an international agreement the United States took the lead in and spent years developing and (2) last-minute, illegitimate, unlawful “contracts” and “final rules” intended to curtail President Biden’s ability to faithfully execute the law.
The Trump administration bulldozed the Administrative Procedure Act for four years but went hog wild from August 2020 till January 2021, illegally doing its best to make America worse.
Credit to Professor Blackman for a fairly interesting post that also manages not to suck up to Trump. I guess now that Trump is out of office Blackman can fall back to actual conservative principles and/or more neutral analysis of the law.
“In my 2017, I identified four species . . . ”
Slow down, Professor. Read your blogs over once or twice before rushing to post them.
I thought it was interesting that President Obama was able to create DACA with a stroke of the presidential pen, yet President Trump was not able to shut it down with a corresponding stroke of the presidential eraser.
(Not trying to make a value judgement on the actual program, just noting that it seems wrong that one president can unilaterally create something that another president can’t undo.)
People did argue that the creation of DACA violated the APA, and I think some judges look favorably upon that argument. Ultimately, all of these cases failed due to standing issues, however. So it’s not clear that the creation of DACA wouldn’t have met the same fate in the courts for the same reason if anyone with standing had brought a suit against it.
Except for the problem of standing shenanigans. The way standing was interpreted, no one could possible have standing to challenge it who would want to do. The only people who could challenge it were the people who were directly helped by DACA. Even other immigrants couldn’t challenge it.
This is a constant problem, and it’s something that our current legal situation needs to address.
The Supreme Court ruled DACA could not be canceled at that time because the Trump administration failed to abide by the Administrative Procedures Act when it did so.
The official reason given by Homeland Security was AG Jeff Sessions declared DACA was illegal, which is not a reason at all for APA purposes.
The APA also requires consideration of reliance interests. Dreamers did their part to comply with DACA requirements, paid fees, made themselves vulnerable by identifying themselves and providing their contact information in exchange for certain benefits, and over time the government became responsible for not arbitrarily or capriciously pulling the rug out from beneath them, which is exactly what the Trump administration did.
Standing wasn’t the issue at all.
I don’t know if the Trump Administration EVER abided by the APA, fortunately. The only reason Trump et al. didn’t further rot the nation is that time and again courts threw out interim and final rules, et cetera, because no one in the executive branch seemed able to learn they actually could not make arbitrary and capricious decisions or rewrite legislation or…
Could be. But it’s another way that one president can shackle another, by setting up a program that people come to depend on, so that you’re not allowed to pull the rug out from under them.
Well, as long as the President is a consenting adult…oops, wrong kind of shackling.