March 14, 2019 by David Driesen

Oversight, Executive Orders, and the Rule of Law

This post is based on a recent article published in the University of Missouri—Kansas City Law Review.

Congressional oversight and the public's impeachment discussion tend to focus on deep dark secrets: Did President Trump conspire with the Russians? Did he cheat on his taxes? Did he commit other crimes before becoming president? The House Committee on Oversight and Reform (or the Judiciary Committee), however, should also focus on a more fundamental and less hidden problem: Trump has systematically sought to undermine the rule of law in the United States. He has done the opposite of what his oath of office requires by taking care that the law be faithlessly executed. I am not just talking about some illegal actions, but rather about a systematic effort to direct government employees to do the opposite of what the Constitution requires. For this reason, there is a need for centralized, not subject-matter specific, oversight.

Trump has openly employed a three-part strategy to destroy the rule of law. He issued a series of executive orders establishing policies that attack the Constitution and much of the U.S. Code. He put people opposed to faithful execution of the law into key posts, such as …

July 9, 2018 by David Driesen

In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to play its constitutional role of protecting the rule of law from Trump’s relentless assault on our safeguards and our democracy.

The Constitution requires Senate confirmation, not to rubber stamp presidential appointments, but to ensure nominees are dedicated to carrying out the law. Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating …

June 18, 2018 by Daniel Farber

Cross-posted from LegalPlanet.

The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change?

The philosophical clash between these last two presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in the past 40 years that control of the White House has switched parties, with accompanying changes in regulatory approaches. Yet the underlying statutory framework in environment and energy law has not really changed that much, especially in the past 20 years. Thus, courts have repeatedly had to decide how much credence to give to an administrative position that reverses earlier policy.

This may seem a somewhat esoteric legal issue, but it is going to be crucial to how much Trump succeeds or fails in gutting environmental regulation. Here's what …

June 14, 2018 by Lisa Heinzerling

Originally published on The Regulatory Review. Reprinted with permission.

Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms.

The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many dozens of final rules issued in the Obama administration, often with little explanation other than that a new President had been elected and he wanted the agencies to revisit existing regulations.

Before the Trump administration, there was surprisingly little law on agencies’ power to delay the effectiveness of final rules. A small cohort of judicial decisions came out of the Reagan years, and a …

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More on CPR's Work & Scholars.
March 14, 2019

Oversight, Executive Orders, and the Rule of Law

July 9, 2018

Senate Must Preserve Rule of Law When Considering Benczkowski and Pruitt's Successor

June 18, 2018

Agency U-Turns

June 14, 2018

Laying Down the Law on Rule Delays