Biden v. Garland: When DOJ Takes Positions the President Disagrees With.

Biden and Garland are not on the same page about Puerto Rico, E. Jean Carroll, the Mueller Memo, and gag orders of the press.

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In theory, at least, the President is the unitary executive. However, according to modern sensibilities, the Department of Justice ought to be independent from the Presidency. President Biden has extolled that value, and promised that Attorney General Garland would have wide latitude to make decisions–even where the President disagrees. In the first six months of the new administration, we have already seen four such fissures.

First, consider United States v. Vaello Madero. This appeal from the First Circuit presented the question of whether Congress violated the Fifth Amendment by excluding Puerto Rico from a social security program. In September 2020, then-candidate Biden tweeted that "This ends when I'm elected President." In other words, his administration would not take this position.

But his administration did take this position. After several extensions, the Acting SG filed a brief that defended the policy:

"Congress is fully empowered to extend SSI to Puerto Rico in light of the concerns respondent identifies, but its decision not to do so does not violate the Constitution under this Court's precedents."

Shortly before this brief was filed, President Biden issued a remarkable statement, which  disagreed with his Justice Department:

Today, the Department of Justice will file a brief in the Supreme Court in the case United States v. Vaello-Madero, which addresses whether a provision in the Social Security Act that declines to provide Puerto Rico residents with Supplemental Security Income (SSI) violates the Constitution's equal protection principle.

This provision is inconsistent with my Administration's policies and values. However, the Department of Justice has a longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences. This practice is critical to the Department's mission of preserving the rule of law. Consistent with this important practice, the Department is defending the constitutionality of the Social Security Act provision in this case.

I don't recall ever seeing a President issuing such a statement regarding a Supreme Court brief. I suspect the Acting SG was prepared to argue that the policy was unconstitutional. She could have simply agreed with the First Circuit's ruling, upon further reflection. This move could have been made late in the game, like in Terry v. United States. But here, Attorney General Garland likely overruled any objections from the White House.

Second, consider the case of E. Jean Carroll. She had sued President Trump for defamation. A state court judge allowed the suit to proceed to discovery. At that point, Attorney General Barr intervened, removed the case to federal court, and invoked the Westfall Act. This law allows DOJ to substitute certain positions in the federal government for the United States. Once that substitution is complete, the suit will be dismissed due to sovereign immunity.

During an October 2020 debate, Biden attacked this decision. He charged that Trump turned DOJ into his "own law firm." Yet, eight months later, the Biden Administration has maintained the Trump Administration's position. DOJ filed a brief in the Second Circuit, arguing that the District Court erred by not substituting the United States. Indeed, DOJ stated that Trump's allegedly defamatory claims were part of his job!

Instead, the question in a Westfall Act case is whether the general type of conduct at issue comes within the scope of employment. Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official's job. Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials' employment—including when the statements were prompted by press inquiries about the official's private life. . . . The same is true here.

Here, the DOJ favored the institutional position of the President, even where the current occupant of that office disagrees. One final note, this brief was signed by four men, perhaps the least diverse signature block in the current administration. I wonder if female attorneys declined to participate in the appeal.

Third, during the campaign, President Biden regularly criticized Attorney General Barr's treatment of the Mueller report. Still, DOJ recently moved to keep secret a memorandum about the Mueller investigation. Last month, Judge Amy Berman Jackson found "disingenuous" Attorney General Barr's rationale to keep the memo private. Now, DOJ appealed that decision, seeking a partial stay. Once again, the institutional interests of DOJ prevailed.

Fourth, there is something of a conflict between the White House and DOJ over press freedoms. Last month, President Biden said his prosecutors would not seize reporters' communications.

"It's simply, simply wrong," Mr. Biden said. "I will not let that happen."

Except he did. Sort of. His Justice Department sought information from four New York Times reporters. And they requested a gag order in March! Apparently, the White House was unaware.

"As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night," Jen Psaki, a White House spokeswoman, said in a statement.

These four vignettes highlight the gap between President Biden and his own administration. In these instances, the President and the Attorney General are not on the same page.

NEXT: Detrimental Reliance and Stare Decisis

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  1. Probably fissures like this are a key factor in the apparent inability of the Biden admin to find a SG.

    1. Also, I am not entirely sure about whether the DOJ is “not on the same page” as Biden, or whether this is simply a massive good-cop bad-cop routine. Biden can let Garland do the dirty work. Trump used this tactic with great effect, distancing himself from the very people he hired and praised. Often, it worked.

      1. Pols saying something because it’s popular while relying on others to stop it is hardly new. See any year with a proposed flag burning amendment, or court packing threats, or imma close Guantanamo, etc.

        1. Exactly. Seems to me this is just more of the same. Certainly nothing to hyperventilate about.

  2. 1. Biden said he disagrees with the policy but not that it’s unconstitutional. Is there any reason to suppose that DOJ’s position represents independence, as opposed to simply principled application of these beliefs by the adminsitration?

    3. Is there any indication that Biden thought the deliberative memos at issue should be released?

    4. This very article you link to notes that Biden’s comments were off-the-cuff, the White House didn’t know about the email collection at issue, and that the administration has since had DOJ enact a new policy that would prohibit it prospectively.

    So you’ve got one example where DOJ is defending the institutional power of the presidency even though the current president tried to score some political points by criticizing the previous president’s use of that power.

    Doesn’t seem all that interesting to me.

    1. “. Biden said he disagrees with the policy but not that it’s unconstitutional.”

      It sure sounds like that’s what he’s saying in the tweet.

      1. Can you point to the specific language that “sure sounds like” Biden is arguing unconstitutionality rather than policy disagreement?

        1. “this latest action is another example of his disrespect for the island…This ends when I’m elected president.”

          Referring to the DOJ filing a cert petition defending the constitutionality of the policy.

          1. Wouldn’t an equally natural reading be that the ‘this’ that ‘ends’ with a Biden administration is the ‘time and again…refus[al] to provide Puerto Rico with much needed resources’ and/or the alleged ‘repeated[] insults?’

            1. I don’t think they’re exclusive.

              But how do get to get to where filing a cert petition asking the court to rule that excluding Puerto Rico from the SSI program is constitutional counts as a “refus[al] to provide Puerto Rico with much needed resources” but filing a merits brief arguing the same thing doesn’t?

  3. Weird things happen when the DOJ is operating independently as it’s supposed to, don’t they? Of course, weirder things happen when it doesn’t, but still.

    But I thought the earlier decision telling Trump’s personal attorney Bill Barr he couldn’t participate wasn’t because giving speeches is not a function of the presidency. Rather it was because publicly defaming American citizens isn’t a presidential function?

    1. Well, the position being taken on appeal is that the statements were a presidential function, so this does seem to be an example (the only one, as noted above) where DOJ is taking a position that Biden appears to disagree with (or used to, anyway).

    2. “Rather it was because publicly defaming American citizens isn’t a presidential function?”

      It’s a power reserved to the Legislature?

    3. “After Carroll went public with her account earlier this year, initially through a book excerpt in New York magazine, Trump denied the incident had occurred, calling it “totally false.” Trump said of Carroll that he “never met this person” – responses the lawsuit filed Monday says were “false” and “defamatory.”

      The whole lawsuit, like others of its kind, is completely bogus. The alleged rape is outside the statute of limitations so the alleged victim makes a claim against a public figure. The public figure has to deny or people will assume its true. Then when the claimed is denied, “defamation” suit filed.

      I know, its Trump but courts should not entertain this abuse of process.

      1. ” The whole lawsuit, like others of its kind, is completely bogus. ”

        Some people should stick to reviewing deeds from $38,000 residential properties in Can’t-Keep-Up, Ohio for typographic errors, and leave the law-talking debates on torts, litigation, and other subjects to others.

      2. I agree with Bob on this; people should not be able to revive time-barred claims by making extrajudicial accusations and then reframing them as “defamation” when the accused denies them. “I am innocent of these accusations” as a matter of law should not be actionable.

        (Of course, Trump complicates this very simple proposition because he didn’t just deny the accusations; he accused her of lying for financial gain and/or at the behest of the Democratic Party and implied that she had falsely accused others as well. Also he called her ugly. (Yeah, I know the last isn’t actionable.))

        1. I agree with Bob on this; people should not be able to revive time-barred claims by making extrajudicial accusations and then reframing them as “defamation” when the accused denies them. “I am innocent of these accusations” as a matter of law should not be actionable.

          Why? Just because the statute of limitation has expired, that doesn’t mean that the victims can’t talk about it. And the defamation claim isn’t due to the the denial of the accusations– it’s Trump’s alleged lying to paint her as crazy / money hungry.

          Under your theory, I can run out the clock on a lawsuit, that means i can be as defamatory and libelous as I want after the fact? If we assume that Carrols facts are true, once time to sue has run out, the accused can drag her name through the mud and lie about everything — and they should face no recourse??

          That strikes me as …..quite ridiculous.

          Trump could (should) have shut up and sued HER for defamation rather than publicly start attacking her. If the claims are in fact false and he never even met her as he stated — a false rape accusation would be actionable. Instead he chose to go the route that would leave any other citizen vulnerable to a lawsuit and is claiming some sort of privilege due to the fact that he was president…even though his comments had nothing to do with his role/duties as president.

      3. Do you know, it’s Trump but therefore a job for the DOJ?

  4. “This provision is inconsistent with my Administration’s policies and values. However, the Department of Justice has a longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences.”

    So, as you can clearly see, my administration’s policies and values are probably unconstitutional. I would like to thank all the people, living and dead, who voted at least once for my party’s policies and values.

    1. lol, yeah thats one way to interpret Biden’s comments.

    2. I know this may be hard to understand, but it turns out that there can be multiple policy options, all of which are Constitutional. There’s no argument that if Congress were to change the law here that there would be any Constitutional impediment to doing so–the only question is whether the current law is Constitutional or not.

    3. The position that it is constitutional for Congress to exclude Puerto Rico from SSI is in no way inconsistent with the position that it would be constitutional for Congress to include it.

      Every now and then, the courts let Congress make genuinely discretionary decisions, where either alternative constitutional. The AG is arguing that this should be one of those situations.

  5. Josh, comparing Vaello Madero to Terry is just wrong. It is much easier to flip positions as respondent than it is as petitioner.

    1. Why? If anything wouldn’t it be the other way around?

      1. The US fails to defend the judgment below semi-often. But to file a cert petition and then withdraw the petition decreases the credibility of OSG. Why grant petitions filed by the government if it might decide to change its mind the following day? You don’t. That is particularly true here where DOJ will almost certainly win.

    2. You can always seek leave with withdraw the petition.

  6. Biden, unlike Trump, does not see the entire federal government as his personal gang of “enforcers”.

    1. Bravo to Biden, for having the integrity to advocate for the position he held before the election. AND, for keeping his promise to allow for an independent DOJ. A lot of people seem to be having a hard time wrapping their heads around the concept of a president with integrity.

      Given the prior administration, and what happened in the past 4-5 years; I’m not sure I can blame these people.

      1. You can’t really refer to any career politician as having integrity. That they (currently) hold positions you agree with does not give them integrity.

        1. Biden certainly has none. Ask Clarence Thomas and Anita Hill, he screwed both at the same time, quite a three way.

          Or his cheating in college, or his plagerism, or his draft dodging, or his lying about the driver who was involved in his wife’s accident.

          Biden is a mirror image of Trump.

        2. ” You can’t really refer to any career politician as having integrity. ”

          Disaffected, cynical, defeated, uninformed clingers are among my favorite culture war casualties.

          1. “Trust the politicians, they have integrity” is my new favorite left-wing mantra.

    2. Right. And the massive increase in IRS funding is just to get the employees up to $15.00/hr.

      1. Collecting taxes is not the IRS’s job?

    3. Biden . . . does not see the entire federal government as his personal gang of “enforcers”.

      Right. See, e.g., his conscription of literally every single federal agency to enforce his mask mandate XO.

      1. Were these agencies investigating him for his personal misconduct?

        1. “Well, ok, maybe he DOES see the entire federal government as his personal gang of ‘enforcers,’ but he does it for reasons I agree with so that’s cool!”

      2. The difference between public policy and personal interests.

  7. The speculation about four men signing the appeal in E Jean Carroll seems completely unwarranted.

    1. If there’s equal representation, that would happen by sheer chance in 6% of cases. Hardly worth commenting on.

    2. Right, just like this whole post seems to be little more than some kind of juvenile sniveling over how Biden doesn’t have the DOJ under his control, somehow.

      I’m annoyed by the DOJ’s positions on a lot of these points, but this is how it should be working.

      1. “Right, just like this whole post seems to be little more than some kind of juvenile sniveling over how Biden doesn’t have the DOJ under his control, somehow.”

        It even accuses Biden of not wanting to get it under control!

        “President Biden has extolled that value, and promised that Attorney General Garland would have wide latitude to make decisions–even where the President disagrees. In the first six months of the new administration, we have already seen four such fissures.”

  8. Holy crap dude, the bully pulpit is not the same as ordering the DoJ around.

    Now, I disagree with the Admin’s position, because I think the independent DoJ norm is are dead and the GOP will affirm that the moment they get a President again. Absent some formalized change, the President now owns the DoJ whether he likes it or not.

    But it’s an issue upon which reasonable people can differ.

    Related: https://dissenting-opinions.simplecast.com/episodes/a-court-with-a-mission-with-david-strauss-oFhRjDr_

    1. “I think the independent DoJ norm is are dead”

      Excellent.

      1. Here is where you and I part ways though: “But it’s an issue upon which reasonable people can differ.”

        You never seem to be able to do that for some reason.

        1. “But it’s an issue upon which reasonable people can differ.”

          You never seem to be able to do that for some reason.

          “Dude — why don’t you think exactly like me on whether reasonable people can differ?”

          1. LOL, you can’t be serious.

      2. My point about how the current Right doesn’t understand/value professional ethics and standards continues to be supported…

    2. “Holy crap dude, the bully pulpit is not the same as ordering the DoJ around.”

      Biden claimed that the DOJ filing a cert petition in a case where a federal law was declared unconstitutional was an insult to Puerto Ricans, and promised that such a thing would not happen when he was President.

      1. That’s far from the “bully pulpit”.

  9. Nobody pays attention to Biden’s comments, his own press secretary even said on immigration that a comment of his was not “policy”.

    1. The bully pulpit is not policy.

      That doesn’t mean it’s nothing.

      But you can pretend no one listens to Biden if it makes you feel better.

      1. But you can pretend no one listens to Biden if it makes you feel better.

        Ah, this must be some of that reasonable people differing stuff I was reading about upthread.

        1. You dumbass. I said Bob never seems to take a position where he thinks reasonable disagreement with him is legitimate.

          And you are pretending I said all issues and positions require reasonable disagreement.

          Except you’re really just trying your pedantry trolling thing, and doing a bad job.

          1. You dumbass.

            Yeah, it never takes long for the whole high-minded heir to Solomon act to wear off. Welcome back, Sarc — missed ya.

  10. “whether Congress violated the Fifth Amendment by excluding Puerto Rico from a social security program. ”

    Um, what?

  11. While you guys are yukking it up about the Biden-Garland knifefight, the American Constitution Society is conducting a week of programs examining what is going to occur in America during the short and medium terms.

    Spoiler: Conservatives aren’t going to like the next few decades of American improvement any better than they have liked the most recent 50 or 60 years of liberal-libertarian progress. Clingers should fervently hope the culture war’s winners are gracious in victory.

  12. “[O]ne of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility.”

    – Federalist No 70

  13. What do the libertarians here think about a policy that places a government official’s actions as above or apart from the law as long as they do it when they are a government official?

    1. Unless Prof. Somin is lurking, I am the only libertarian here.

  14. What kind of swampy BS is this? If the Pres honesty and sincerely disagrees with what his people are doing, tell them to stop. If they refuse, ask for their resignations. If they won’t resign, fire them.

    Of course this assumes that Biden *really* disagrees with his own DoJ and isn’t posturing for the benefit of the rubes.

  15. I don’t see a problem with saying “I don’t agree with policy, but the AG defenda US statutes whether I agree with them or not.”

    Judges need to say this every mow and then. In a democracy nobody can possibly agree with every statute on the books, and in our polarized, evenly divided society where each side gets the chance to pass laws every few years and there are always statutes on the books coming from both places, nobody possibly can.

    So it’s quite reasonable to say every now and then something like “My oath of office requires me to enforce this law, so enforced it gets. But I think we’d really be better off if Congress changed it.”

    Judges need to say that every now and then.

    Why shouldn’t Presidents?

    1. Don’t expect an answer from Blackman.

      He’s just going to take shots at Biden, justified or not.

      This post is just silly.

      1. Take your elitism elsewhere — by South Texas standards, this is great work!

    2. If the post is correct,

      -President Biden let the DoJ do stuff which, according to candidate Biden, amounted to being Trump’s law firm.

      -And candidate Biden promised not to seize reportorial communications and then the Biden administration did just that.

      If I were cynical, I’d say Biden is doing a ventriloquism act where he says some stuff while his dummy says other, contradictory stuff.

    3. “I don’t see a problem with saying “I don’t agree with policy, but the AG defends US statutes whether I agree with them or not.””

      There’s not. But Biden said that it was an insult to Peurto Ricans Trump did it, and promised it wouldn’t happen when he was President.

    4. The difference is that the office of President is political, while that of federal judge is not.

      Biden said that the policy was an insult to Puerto Ricans. He now says it is inconsistent with his Administration’s policies.

      So did Biden ever come out and advocate that the law should be changed? What has he done to erase the “insult” to Puerto Ricans since taking office?

      If the answer is nothing (and it is), then his statement rings kind of hollow.

      A federal judge, OTOH, should not engage in political advocacy. So he or she must uphold the law as written.

      1. So did Biden ever come out and advocate that the law should be changed?

        Yes, in the same Monday press release.

  16. So, in both cases we have Presidents saying things that are politically expedient to say, while the DOJ does things that are politically expedient to do.

  17. I think you’re overstating things here Josh,

    A more likely proposition is that there’s a position that Biden “publically” states, then there’s the actual position. The actual position is the one the DoJ takes. This allows Biden to have his cake and eat it too.

    1. With the PR bit, if Biden wanted to, he could push this through. Either through changing the position in the DoJ, or exerting political capital in Congress. In reality though, PR doesn’t vote, and it saves some money from the budget. It’s not really a priority for Biden. It never has been. He doesn’t really care. It’s good PR for Biden to be pro changing the PR SSI bit, without actually…changing it.

    2. That’s just protecting the presidency. Imagine the precedence set. Someone accuses Biden of sexual inappropriateness. (What, Biden act sexually inappropriate? Never… Not like he has people accusing him of rape) He denies it in public. Then he can’t have the federal government protect him. Not surprising in the least.

    3. With #3 and #4, again, it’s useful for Biden to say one thing, but actually have another thing happen.

    The DoJ here isn’t really “independent”. It’s simply acting as a useful cut out for Biden.

    1. That’s mostly it. Both Biden haters and defenders are missing the obvious here. Most of Blackman’s examples involve protecting executive power. Every presidential candidate I can remember (going back decades) found cause to criticize executive overreach while on the campaign trail – and this was particularly so with an incumbent of the other party.

      But when that candidate is president he then becomes zealous of maintaining his executive flexibility and protections – even in instances well outside his supposed inclinations. This two-step isn’t something we’ve seen just once or twice, but every. single. time.

      Sure, you can make a case for hypocrisy, but everything’s a matter of degree in politics. Even the political version of a saint will be a hypocrite once or twice a week. It’s like lying : All pols lie, but only a rare few are psychopathic head-cases like Trump.

      As for the “argument” this means some kind of war between the the White House and DOJ, that’s just Blackman being a clown.

      1. Except that this appeal isn’t about defending the power of the President, it is about defending the power of Congress.

        Biden’s tweet last September was wrong to lump this appeal in with anti-Puerto Rico executive policies of the last administration. Fortunately he hasn’t prioritized that ill-advised promise above his pledge to defend the Constitution, though Josh Blackman seems to disagree.

        I’m not sure what Biden could do here that would satisfy Blackman. Personally directing the DoJ like Trump tried to do would be breaking a bigger promise. I don’t think it would be better to issue questionable executive orders declaring a new emergency and diverting military funding to SSI in the territories despite Congress excluding them (except, strangely, for the Northern Marianas – residents of Saipan are eligible but not Guam).

        Instead he chose to keep his pledge to defend the Constitution, and his promise to keep his hands off the DoJ tiller, and included expansion of SSI and other program eligibility to the territories in his 2022 budget last month. What more should he do?

        1. My “most of Blackman’s examples” covered items 2-4, the Puerto Rico case being the outlier. But even that’s not hard to understand. I suspect Biden realizes his campaign rhetoric lacked constitutional footing. So he deferred to Justice even while insisting it was a painful choice. That just the action of an adult responsible leader. All pols say excessive or irresponsible things while campaigning. That’s a given. Distinctions are made after they’re in office.

  18. Re the seizing of reporters’ papers – That’s a valid criticism. Biden promised that if he were elected “that will not happen”, but once he was elected he did not issue an appropriate order prohibiting that. He should do so. That’s easy for him to do when almost all reporters are “on his side”, and the few who aren’t on his side can be shut up by the media and tech monopolies.

  19. Regarding the speculation that women declined to participate in the Trump appeal.

    I’m trying to think of a single time a man could tell their boss “no I won’t do my job because of politics and gender” and the result be that man not being fired. If the Justice Department allowed that to go on it is nothing more than a sexist double standard.

  20. The VC’ers were big fans of the “Unitary Executive”. Now, after Trump’s embrace of it and Biden’s stepping away, they’re confused.

    1. Each of the alphabet soup agencies promote a myth of their supposed “independence,” which is an unconstitutional concept by definition.

      Situations like this help illustrate why.

  21. The Deep State is alive and well, apparently.

  22. The fellow just refuses to act like he was elected King. What a disappointment for Republicans.

  23. In case people are keeping score, here is another one: Hunter v. the U.S. Department of Education

    “The Justice Department in a court filing Tuesday said it can “vigorously” defend a religious exemption from federal civil rights law that allows federally funded religious schools to discriminate against LGBTQ students, a move that surprised some LGBTQ advocates who said the wording went further than just an obligation to defend an existing law.”

    “What this means is that the [Biden administration] is now aligning itself with anti-LGBTQ hate in order to vigorously defend an exemption that everyone knows causes severe harm to LGBTQ students using taxpayer money,” said Paul Carlos Southwick, director of the Religious Exemption Accountability Project”

    https://www.washingtonpost.com/religion/2021/06/09/biden-justice-lgbtq-lesbian-gay-christian-college-university-bostock-equality-act/

  24. The idea of an “independent” DOJ, or any other agency, is unconstitutional by definition.

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