The Volokh Conspiracy

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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.


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.