Tag Archives: executive order

White House Rejects Then Accepts Ethics Transparency

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Another pointless dispute within the Trump administration appears to have been resolved. It was pointless because, one way or another, the information sought by the Government Ethics Office (GEO) – lists of lobbyists given waivers by the White House to work in the Executive Branch –was going to be discovered and reported. With who-knows-how-many former lobbyists showing up at government meetings and signing off on government documents, sooner or later their identities would have been uncovered and reported. In the meantime, this episode, as with many others, illustrates the propensity of the Trump administration toward secrecy regarding the public’s business that these people are supposedly performing.

The dispute is thusly stated. Eight days after taking office, President Trump signed an Executive Order entitled “ETHICS COMMITMENTS BY EXECUTIVE BRANCH APPOINTEES” that, among other things forbids, for 2 years from appointment, participation in Executive Branch activities involving “any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” EO sec. 6. If an appointee was a registered lobbyist with the 2 years before appointment, the EO also bars participation, for 2 years from appointment, in “any particular matter on which [the appointee] lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls.”

The apparent purpose of this early EO was to show Trump’s commitment to ethics in government and the Executive Branch in particular. However, the broad sweep of the EO is limited by the definitions that apply and create potentially large loopholes. For example, “lobbied” is defined as “to have acted as a registered lobbyist.” EO sec. 2(m). Although “Lobbying activities” has the same meaning as that term has in the Lobbying Disclosure Act,” the EO excludes activities such as “communicating or appearing with regard to:  a judicial proceeding; a criminal or civil law enforcement inquiry, investigation, or proceeding; or any agency process for rulemaking, adjudication, or licensing, as defined in and governed by the Administrative Procedure Act, as amended, 5 U.S.C. 551 et seq.” EO sec. 2(n). Why such exclusions were necessary is something of a mystery since the Lobbying Disclosure Act, 2 USC sec. 1601, itself contains similar exclusions. Restating those exclusions may be presumed to have had some purpose other than confusion, but, again, this is not clear. In any case they exclude from the EO lobbyists who were hired to engage in activities on behalf of entities that may come before the Executive Branch, including the White House itself, on those same issues.

Moreover, the Lobbying Disclosure Act contains this exception: “The term “lobbyist” means, in English, someone retained to engage is “more than one lobbying contact” but not including “an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a 3-month period.” So, again in English, that means that a “lobbyist” is not subject to the EO at all if work for a particular client represented less than 20 percent of the total time devoted to that client’s interests during any quarterly reporting period, a test that could easily be met by a multitude of true full-time lobbyists with many clients. And, obviously, if one is not a “lobbyist,” there is no need to register as one under the Disclosure Act and there is no bar to working for the White House or one of the Executive Departments on any issue. This seems to leave a gaping hole for conflicts of interest in appearance if not in reality.

On top of those loopholes, the EO itself contains a formal waiver provision enabling “The President or his designee” to “grant to any person a waiver of any restrictions” otherwise contained in the EO. It was those waivers that the GEO wanted to see and that for some time the White House refused to disclose. After exchanges of challenging letters between the White House and GEO, the White House relented.

The Obama administration routinely released waiver information for similar actions from a restrictive policy on hiring of former lobbyists for Executive Branch work, but, for reasons that defy understanding, the Trump administration initially declined to follow suit. The objection to the jurisdiction of GEO seems absurd on its face and a needless resistance to transparency, another self-inflicted wound, in keeping with a general tendency of this administration to work in the shadows. And another reason for the electorate to distrust the motives of Trump and his enablers.

4th Circuit Decision on Muslim Ban — Excerpts

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Since most of my readers will not suffer the ordeal of reading the entire 205 pages of the 10 to 3 decision issued by the 4th Circuit Court of Appeals in International Refugee Assistance Project v. Donald J. Trump, I have decided to make things easy for you by setting out my favorite quotations from the majority opinion and a portion of one concurring opinion. Obviously, I have been highly selective. The majority opinion is remarkably detailed and thorough, hard slogging even for a lawyer. Unlike the government, I freely admit that I am discriminating in favor of the plaintiff-winners in the case.

For context, the case was heard by the Chief Judge, and 12 of the remaining 15 judges on the court. The three dissenting judges were George H.W. Bush or George W. Bush appointees, but one of the majority on the decision was a George W. Bush appointee as well.

Here you go:

“The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

….

“The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.”

….

“… when we protect the constitutional rights of the few, it inures to the benefit of all. And even more so here, where the constitutional violation injures Plaintiffs and in the process permeates and ripples across entire religious groups, communities, and society at large. When the government chooses sides on religious issues, the “inevitable result” is “hatred, disrespect and even contempt” towards those who fall on the wrong side of the line. Engel v. Vitale, 370 U.S. 421, 431 (1962). Improper government involvement with religion “tends to destroy government and to degrade religion,” id., encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group.”

….

WYNN, Circuit Judge, concurring:

“Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination. We have matured from the lessons learned by past experiences documented, for example, in Dred Scott and Korematsu. But we again encounter the affront of invidious discrimination—this time layered under the guise of a President’s claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their nation of origin. Laid bare, this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims. Such discrimination contravenes the authority Congress delegated to the President in the Immigration and Nationality Act (the “Immigration Act”), 8 U.S.C. § 1101 et seq., and it is unconstitutional under the Establishment Clause.”

 

Is Unpredictability a Strategy or Merely Incompetence?

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A fair and important question arises when observing the almost 100 days of the Trump administration: is the unpredictable behavior of the President, and resulting chaos among his top team members, a smart strategy in international affairs or simply proof that Trump is unhinged and incompetent in understanding one of the most critical parts of his job?

Trump has never been shy in self-promoting his skills as a negotiator, assuring his infatuants that “I always make the best deals, believe me.” He allegedly wrote a book about deal-making which claim is also cited as proof of skill. And, of course, he has made a lot of money developing real estate. Still, it’s a fair question whether those skills, if they exist, translate well to international affairs where there are usually only three options: yield, negotiate or fight.

There are many theories of negotiation. Some hold fast to the trash-and-burn zero-sum approach that says, in essence, ‘what I win, you lose’ and vice-versa. Proponents of that style often negotiate by threats, bluffs and other forms of intimidation. They believe you can win more by being difficult and unpredictable, with one foot always out the door in an effort to convince the other side that you are the dominant party whose needs must be met or the negotiation ends. This approach often leads to litigation, the “peaceful equivalent of war,” in which often both sides lose.

Another major theory of negotiation is “mutual gains,” in which each party evaluates his own and the other party’s interests and seeks to find a way for both sides to gain something from the negotiation. They see the discussion as an opportunity for each side to ‘win’ by recognizing the legitimate interests of the other side and finding ways to compromise conflicts. This approach requires a measure of mutual trust by the parties, defined as the ability to believe what the other side says and what it promises to do.

In international affairs there is no stasis, no situation in which the positions of the parties are fixed over time. If reasonable and mutually acceptable methods of getting along cannot be negotiated, there is a significantly greater risk that the stalemate will lead to violent conflict because the parties, lacking trust, will continue to try to improve their respective positions through unilateral action that may be seen as overtly hostile by the other ‘side.’ For example, if one side believes it has a commanding advantage, it may then act to solidify that position by acquiring new territory or some other hostile act.

If you have ever had the unpleasant and unsettling experience of trying to negotiate with someone that you did not trust and whose words were frequently in conflict with his actions or the words and actions of his support team, you understand how central trust can be to an effective negotiated outcome to any dispute.

The sitting President of the United States is most decidedly not a man of his word. On the campaign trail, he often declared that his policy in office would be one of “unpredictability,” as if this would be a huge advantage. In reality, the opposite is more likely true. It is not plausible to believe that acceptable relationships can be maintained with adversaries, and friends as well, when no one can depend on what you say and when your statements conflict with those of your team leaders. Similarly, when it appears that there is no settled policy, or no policy at all, and that positions are being made up on the fly, uncertainty results and leads to defensive positioning by those who feel threatened.

And that is precisely what the Trump administration has brought to the table.

The evidence is in plain view. There are frequent instances in which the United States representative to the United Nations says things that appear to be in conflict with statements from the President. Even members of his cabinet, including the Secretary of State, sometimes appear to be in conflict with the Commander-in-Chief and either have to withdraw or qualify what they have said. Or they become “explainers” who reinterpret what Trump has said to align it more closely with what they have said or done.

One of the most disturbing incidents of conflict among the President and his team occurred in connection with the claim that the President had ordered a naval task force to a position near North Korea as a kind of warning. Such shows of force are not uncommon in international diplomacy, but in this case the President and his men were wrong about where the aircraft carrier and escort were located and where they were headed. One can only imagine how the North Koreans evaluated that situation once it was exposed.

One day Trump believes that NATO is obsolete and the next day he suddenly appreciates the role NATO plays in maintaining world peace. He often appears to act in response to the last voice he heard. One day that last voice may get the United States into a world of hurt. Trump will then say, as he has before when caught out in a big lie, “I heard it from someone with great credentials. It wasn’t me.” Except that it will be him. He is, as he often reminds us, the President.

This serious deficiency is also having an impact domestically. One would have thought that the time between the election and the inauguration would have been spent studying the government and the governing environment, resulting in at least a rough outline of a plan of action once in command of the Executive Branch resources. Instead, the Trump administration has been so obsessively focused on making a big splash for Trump’s ego that it evidently has no plan. It has only ideology and is making up its governing strategy as it goes along. One of the results of this is the President’s budget plan that proposes to eliminate entirely the small but highly beneficial U.S. Trade & Development Agency. This group reportedly returns $85 in exports for every $1 spent. See “Trump wants to kill an agency that is accomplishing one of his biggest goals” at http://wapo.st/2o9zSrl.

Defunding this agency is plainly a self-destructive act that shows the administration has not studied and has no coherent plan for addressing its own stated goals. Instead it is shooting itself, and the country, in the head. Similarly, Trump’s interference with the Environmental Protection Agency’s regulations reflects a lack of study and a total lack of understanding of the work of the agency to protect the air and water. Similarly, there is no evidence that the Trump administration has studied rationally the relationship between environmental protection and job creation. The administration’s policy appears to be arising from inputs by favored industries who want a free hand to act as they please, with no actual evidence that enabling such behavior will have meaningful job-creating outcomes.

Mr. Trump appears still to believe that being “unpredictable” is a positive quality. He seems incapable of learning from mistakes, partly because he won’t recognize any mistakes, and thus continues to manage his position with chaos and failure as the principal results. The new and seemingly desperate rush to post a victory of some kind before the 100-day mark arrives is likely to result in more failures, as illustrated by the federal court opinion enjoining the Executive Order on Sanctuary Cities. Once again, Trump and his team are at odds with each other. Read here, in conclusion, an excerpt from the court’s opinion (italics added):

“The Government does not respond to the Counties’ constitutional challenges but … explained for the first time at oral argument that the Order is merely an exercise of the President’s “bully pulpit” to highlight a changed approach to immigration enforcement. Under this interpretation, Section 9(a) [the enforcement section of the Executive Order] applies only to three federal grants in the Departments of Justice and Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This interpretation renders the Order toothless; the Government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law. Counsel disavowed any right through the Order for the Government to affect any other part of the billions of dollars in federal funds the Counties receive every year. 

It is heartening that the Government’s lawyers recognize that the Order cannot do more constitutionally than enforce existing law. But Section 9(a), by its plain language, attempts to reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is broader still, addressing all federal funding. And if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments. The President has called it “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply with Section 1373 would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation offered at the hearing.

Although the Government’s new interpretation of the Order is not legally plausible, in effect it appears to put the parties in general agreement regarding the Order’s constitutional limitations. The Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.”

It seems the President and his attorneys have entirely different strategies regarding the meaning and defense of the Executive Order that Trump signed. Given the public statements of the President and the Attorney General, the administration cannot get away with “I didn’t mean it” as a defense to constitutional challenges.

I conclude that the chaos of the administration is the result of incompetence and that incompetence is not a good strategy for any purpose. Where exactly the source of all this internal conflict resides is, until the memoirs are written years hence, only a matter of speculation. But it is still a fair assessment that many serious thinkers saw this coming. Would that the voters had listened.

This is Only the Beginning

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Some people with high intelligence and general thoughtfulness about important matters are shocking me now with their view that we are being hasty and unfair in judging the new president. They argue that it is “early days” and that naturally there will be a few “distractions” as Trump gets his bearings. In addition, some serious people have argued that it is alright for the press to soft-peddle Trump’s constant “misstatements of fact” as “falsehoods,” because lying requires intent to mislead and they can’t see into Trump’s mind.

But, of course, they can. We all can. You know a liar when you hear one. They are persistently resistant to evidence. They repeat false statements with overt indifference to the truthfulness of their statements.

There is a principle in the law that states “if you take an action with reasonably foreseeable consequences, then you intended those consequences.” Thus, if you drive your car into a crowd of people, killing several of them, you will not be heard to claim “I didn’t mean to kill them; I only wanted to scare them.” Applying this logical and common sense principle to Trump, it must be concluded that he intended to make these false statements and that those statements are “LIES!” We should call them by their true name.

Because he “believes” in multiple mythologies about how foreign-born persons are admitted to the United States, notwithstanding the elaborate vetting processes in place for years now, Trump has issued an Executive Order that has led, foreseeably, to chaos and harm to many people who are otherwise legally entitled to enter the United States. A short summary of some of the early damage is well-told in this piece. http://nyti.ms/2kxA3Y4  Fortunately in the short term, a federal court, at the behest of the ACLU, has issued nationwide stay of the Executive Order.

Trump’s actions regarding refugees are illegal and unconstitutional. They are also likely to cause more actual harm that any harm actually prevented. There is no “wait and see” here. It is clear beyond a reasonable doubt, the standard of proof for criminal cases, that the man in the White House is the same person we saw on the campaign trail. Nothing has changed. A child does not grow up in a few months. So to my friends who say I am being too hasty, I say open your eyes and your minds to reality. What you now see is what we’re going to get.

The Republican Congress, meanwhile, is running out of sand into which to bury their collective heads. In their inverted positions, they won’t even see the next one coming.  They vilified President Obama for claimed abuses of the power of executive orders in the face of refusal by Congress to even consider some of his proposals. Now their man is issuing such orders almost every day without a thought to Congress, the agencies of jurisdiction (and expertise) or anyone else. Trump appears to have forgotten, if he ever knew, that there are three branches to the United States Government. Yesterday he was forcefully reminded.

Not that he cares. The White House Chief of Staff Reince Preibus has stated, in effect, “we don’t care who got hurt. We got our rights to protect the borders.” No doubt we have that right, but one would hope that the acts taken to protect the border are thought through and competently executed. Instead, the direct consequence of Trump’s need to show he’s in charge was incompetence on a massive scale, leading to large protests across the country, loss of respect overseas and more fodder for the maniacs of ISIS to use in recruitment. Richard Nixon faced many protests and reacted by making “enemies lists” and lying about the war in Vietnam. Trump likely will turn to that next. Round up the usual suspects and to hell with the consequences.

How long then before Trump and his “team” start to execute on their threats to stop the press from criticizing him? How long before they tire of facing a multitude of legal challenges arising from his arbitrary and unjustified executive orders and begin ignoring court orders? How long before they order the military to start arresting people for sedition?

Here are some things you can do.

  1. Communicate with your representatives in Congress that you demand that they stand up to the arbitrary conduct of the President;
  2. Join the protests whenever you can;
  3. Make clear to everyone you know that you are not satisfied with a country in which the Executive Branch runs roughshod over the rights of the people;
  4. Join your local political organization and actively engage with neighbors.
  5. # RESIST everywhere all the time.

Trump Spits in Women’s Faces; Calls on Nation to … What?

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I am not making this up. Tomorrow the Federal Register of the United States will publish a Presidential Proclamation declaring that January 20, 2017, the date of Trump’s inauguration, shall be a “National Day of Patriotic Devotion,” the stated purpose of which is to “strengthen our bonds to each other and to our country — and to renew the duties of Government to the people.” See http://bit.ly/2j6VtJC  See also http://wapo.st/2j7soOc The proclamation is quite precise as to the date and does not say that the date is to be so recognized in future years. It appears, therefore, to be solely about Trump’s inauguration, attempting to unify the concepts of his election/inauguration and patriotism. The cult of personality is now with us. Can loyalty oaths be far behind?

This action aligns with the signing of an Executive Order today that cuts off U.S. funding to international non-governmental organizations that perform or actively promote abortion as a method of family planning in other countries. The history is that this “Mexico City Policy” was announced by President Reagan in 1984, rescinded in 1993, restored in 2001, rescinded in 2009 and now, once again, is restored. Women of the World, Trump has heard your cry for control of your own bodies and responded with contemptuous spit.

The monumental Women’s March on January 21 had better be the kickoff of a unified national and even global movement to counteract what Trump has in store or the essential nature of the American experience will be lost. Mobilize now.

The Democratic Party needs to make a decision too. Is it going to try to outplay Trump at his own game, or accept his rejection of “politics as usual” and take the game to him. The Party must get organized, develop an action strategy and communicate it through the massive networks developed by the Obama and Clinton organizations. Trump is going to pick everyone apart if they continue to try to placate him with “we want to work with you.” He has made it clear there is only one basis on which he will work with anyone and that is on terms he sets. The Party must decide where its soul is and act accordingly or abandon the pretense that it represents the liberal/progressive cohort in our politics.

As for the media, you have clearly been warned. It’s déjà vu all over again. Richard Nixon has risen and is embodied in Donald Trump. You must stop depending on the White House to feed you what they want you to get.  Stop giving air time to people like Kellyanne Conway just because they work for Trump. And please, please get rid of the Trump shills on the “panels of experts” that discuss everything Trump says and does. Go back to being news organizations. Trump is not entertaining.

Americans should not have to reply on the satire of Saturday Night Live and the Daily Show to point out the hypocrisy and absurdity of this administration and Congress. Take risks. Grab hold of stories and don’t give up. Where are the tax returns? What is he hiding? Call out the lies, every one of them. That alone will give you plenty to report on.