Alas, he is right about IEEPA, which is an extraordinarily broad and open-ended delegation from Congress to the president. This is not about Article II power, at least not mainly. It is about the power Congress has given to the president. 1/
2/ Here is what POTUS can do simply upon his unilateral declaration of an emergency with respect to “*any* unusual and extraordinary threat, which has its source in whole or substantial part outside the United States.” law.cornell.edu/uscode/text/50…
3/ Read those astonishingly broad and all-encompassing words carefully and imagine what it might mean in Trump’s hands. Pay attention especially to the word “any,” which is used dozens of times in 1702.
4/ Note also that courts have tended to uphold even the broadest exercises of presidential power under IEEPA, since the delegation is so extensive, and since it operates in an area of the president's overlapping Article II power.
1/ It’s going to be a wild ride for executive power during Trump 2.0. Here is a quick list of important issues where executive power is likely to be pushed hard, rethought, resisted, and/or, when possible, litigated. What am I missing?
2/ The statutory law of civil service protection and, relatedly, the scope of POTUS’ removal power in the face of statutory restrictions—both for career & non-career officials. (Also: presidential authority to redesignate the head of the Fed.)
3/ The complex Federal Vacancies Reform Act, especially as it operates at outset of the administration. How aggressive and imaginative can Trump be in putting in loyalists atop departments on 1-20? How deeply can he deploy loyalists on 1-20?
1. Quick speculation about the QU the Court crafted in Trump v. US: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” supremecourt.gov/orders/courtor…
2. First, the Court crafted the question to focus on “conduct alleged to involve *official acts*,” as the Trump team suggested, and not “crimes committed while in office,” as Smith had suggested in December. (The Court also cut out some “out there” Trump arguments)
3. Second, the Court asks whether the president enjoys “presidential immunity,” not, as the Trump team had construed the case, “absolutely immunity.” In addition, the question asks “Whether, *and to what extent*,” a former president enjoys this immunity.
1/Prediction: The interpretation of a criminal statute used to convict hundreds of J6 rioters, 18 U.S.C. 1512(c)(2), won't survive appellate review. The Sup Court—which interprets statutes like this narrowly—will eventually interpret 1512(c)(2) in this way.
2/ To get a flavor why, listen to the oral argument in this DC Circuit case. lawfareblog.com/dc-circuit-hol… (Oral argument here. cadc.uscourts.gov/recordings/rec…). The government didn’t have great answers to two judges’ concerns about “corruptly” in the statute.
3/ I’m *not* saying this DC Circuit panel will throw out this conviction, since the “corruptly” arguments are not squarely presented. And I think it will take a while for the issue to reach the Supreme Court.
1/ I wrote here about how the special counsel system is not well-suited to the task of investigating Biden and Trump—and now possibly Pence—for mishandling classified information. nytimes.com/2023/01/24/opi…. But the real problem is the broken classified information system. Thread.
2/ A well known problem is massive overclassification. Too many things are made secret that shouldnt be, and secrecy lasts too long. Pathologies follow: excessive leaks, corrupt manipulation of secrets, things hidden from the American people that shouldnt be, bad governance, etc
3/ A related problem is the amazing degree of abuse of classified info rules at the top: Biden, Trump, Pence, Clinton, Gonzales, Petraeus, Berger, Deutch. I am prob leaving well-known cases out, and these are ones we know about it. Surely there is much more abuse at the top.
2/ It is hard to exaggerate how outside the box this episode is. There have been disputes in discrete contexts about Prez Records Act compliance and whether and how POTUS or VP declassified a document or program.
3/ But there’s been nothing I know of like this—especially Trump’s persistent “lack of respect for the strict rules for [classified] document handling,” washingtonpost.com/national-secur…, and
It's not just "that a Democratic president cannot deter a Democratic House speaker from engaging in a diplomatic maneuver that his entire national security team — from the C.I.A. director to the chairman of the Joint Chiefs — deemed unwise." nytimes.com/2022/08/01/opi…
@tomfriedman focuses on Biden's fear of asking Pelosi not to go. But is the executive branch facilitating the congressional visit, as it usually does?
Typically, DOD "reserves available military aircraft for transportation, while [State Department] ... works with local embassy staff to arrange accommodations and other logistical assistance," & "local embassy staff also play an important supporting role" repository.law.umich.edu/cgi/viewconten…