Federalist Society members were in high spirits at their annual convention in Washington this month, genuinely giddy after a keynote speech by the self-identified "committed originalist and textualist" justice Neil Gorscuh they helped install on the Supreme Court. Thirty-five years after its founding, the conservative-libertarian assemblage of law students, lawyers, and judges was also celebrating its quasi-official role in vetting nominees for President Trump for federal judgeships and its increased influence among Republican lawmakers on Capitol Hill.
Thus energized, the society decided to use three days of programs to renew and reinvigorate the war that the group's political and intellectual forbears fought and lost to the New Deal 80 years ago. Speaker after speaker echoed the theme that the federal appeals court judge Edith Jones struck in introducing the opening panel [Nov. 16] by attacking the so-called administrative state as a "nonelected, nonaccountable branch of government."
To its credit, the Federalist Society typically includes one liberal to speak for the opposing side in its four-person panels. That role fell in the opening panel to Gilliam Metzger, a professor at Columbia Law School, who had just published a widely noted article in the Harvard Law Review warning that the administrative state was "under siege." The attacks, she told the audience, are "misguided."
The judicial underpinnings of federal regulatory agencies are well established, but completely illegitimate, to hear Federalist Society members tell it. Independent agencies such as the Federal Trade Commission (FTC), founded in 1914, can be created by Congress to combine three kinds of power: rulemaking, enforcement, and adjudication. And the members of those multimember commissions can be given fixed terms, subject to removal by the president only for cause.
In a paradoxical footnote, that principle comes from the Supreme Court's decision in a case called Humphrey's Executor that rebuffed President Franklin D. Roosevelt's decision to fire FTC commissioner William Humphrey for not supporting FDR's policies. The 1936 ruling was unanimous, but former federal appeals court judge Michael McConnell was warmly received when he called for overruling it.
Under a more recent pair of cases, all federal agencies, including those in the executive branch such as the Environmental Protection Agency (EPA), get the benefit of a generous amount of judicial deference for their rulemaking powers. The Supreme Court's unanimous decision in Chevron U.S.A. v. Natural Resources Defense Council (1984) held  in upholding a deregulatory move by the EPA  that agencies are entitled to deference if they adopt "a permissible construction" of a statute that vests discretion in the agency.
A decade later, the Court held  in another unanimous opinion, this one written by Justice Antonin Scalia  that federal agencies are also entitled to deference when they interpret their own regulations. Before his death, Scalia publicly voiced doubts about his opinion in Auer v. Robbins (1997). Those doubts have been picked up by, among others, Scalia's colleague, Clarence Thomas, and his successor, Gorsuch.
The legal doctrines are far removed from the real political issue: efforts by business interests and committed small-government conservatives to undo regulations designed to protect, among other things, the environment, public health, consumers, workers, and investors. Gorsuch mocked Metzger's article in his black-tie dinner speech and warned against what he saw as the risk under the administrative state of "moving from liberty to tyranny."
Metzger labored, to no apparent effect, to rebut the depiction of federal bureaucracies as either undemocratic or tyrannical. The administrative state "performs some very important constitutional functions," she explained. In her article  the Foreword for the Harvard Law Review's annual Supreme Court edition  she wrote more forcefully of what she called "the administrative state's essential place in our constitutional order."
Administrative agencies are far from unaccountable, Metzger argued in her article." Anti-administrativists fail to recognize that the key administrative state features that they condemn, such as bureaucracy with its internal oversight mechanisms and expert civil service, are essential for the accountable, constrained, and effective exercise of executive power," she wrote.
In place of the accountability built into bureaucratic structures, the Federalists want to strengthen the power of the president and/or Congress to override regulatory decisions. President Trump's chief spear carrier in the so-called deconstruction of the administrative state drew raucous cheers when she described the administration's policies. Neomi Rao, administrator of the White House's Office of Regulatory and Information Affaires (ORIA), promised that the administration will do better than Trump's executive order to eliminate two regulations for every new regulation put in place.
Sen. Tom Cotton, an Arkansas Republican, was similarly well received when he noted that Congress has used the previously obscure Congressional Review Act to repeal more than a dozen so-called "midnight regulations" that the Obama administration adopted in its final months. The law had been invoked only once before.
Presidential or congressional overrides are poor substitutes for administrative accountability, however, according to dissenting speakers. Lisa Heinzerling, an environmental law expert at Georgetown Law School, cited President Obama's decision to overturn an EPA decision on ozone as an example. Obama provided little by way of justification for his action, she said. In like vein, Peter Strauss, a professor at Ohio State's Columbus School of Law, said that Congress had failed to justify its recent action to override a regulation issued by the Consumer Financial Protection Bureau (CFPB) to prevent banks and other financial institutions from using mandatory arbitration clauses to block lawsuits by disgruntled customers.
Metzger concedes that the anti-administarativists are gaining traction with their arguments  not just in the Trump administration and in Congress but also at the Supreme Court. She counts Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. as sympathetic to the critique, along with the committed critics Thomas and Gorsuch. Are we one justice away from a fundamental transformation of administrative law? Metzger thinks not, but Federalist Society members seem to think their goals within reach.
Donald Trump marked a historic milestone this week when he became the first president to be confronted with a resolution calling for his impeachment and removal from office within his first year in the White House.
The 25-page resolution introduced on Wednesday [Nov. 15] by six Democratic members of the House of Representatives lays out five articles of impeachment that recite familiar stories relying for the most part on undisputed facts. Trump is charged with obstructing justice  most specifically, by firing FBI director James Comey to try to thwart the Russia investigation. He is also accused of violating the Constitution's foreign and domestic emoluments clauses and with undermining the independence of the judiciary and the freedom of the press.
As to each of the counts, the resolution lays out a strong case that the president, quoting now, "has undermined the integrity of his office, brought disrepute on the Presidency, and betrayed his trust as President in a manner subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States." With the issues so familiar, the resolution's sponsors rightly view impeachment as the only means for ending what the lead sponsor, Tennessee's Steve Cohen, in a press release calls Trump's "reckless and harmful behavior" in office.
By historical standards, the resolution is as dense and detailed as the only successful impeachment resolution to date: the three articles adopted with bipartisan support by the House Judiciary Committee on July 27, 1974. The committee's action, combined with the Supreme Court's decision in the Watergate tapes case, forced Richard M. Nixon to resign the presidency within a matter of days to avoid all-but-certain conviction and removal.
By contrast, the Trump impeachment resolution is far more detailed than the impeachment measures brought, unsuccessfully, against Andrew Johnson in 1868 and Bill Clinton in 1998. The Senate fell one vote short of the two-thirds majority needed to convict Johnson on charges of violating the Tenure in Office Act by removing Edwin Stanton as secretary of war. The Senate fell short of a simple majority on the two counts against Clinton: 45-55 on perjury for lying to a federal grand jury and 50-50 on the related obstruction of justice count.
Impeachment is a powerful weapon, so it is probably good that it has been wielded against the president infrequently and successfully only in Nixon's case. History has long approved of Johnson's acquittal: his removal for firing a member of his own cabinet would have gutted the president's authority over the executive branch. Decades from now, history is also likely to judge that the Clinton impeachment was more a partisan power grab than a principled effort to punish presidential misconduct.
Six other presidents have been the targets of impeachment resolutions, according to a detailed report by the Congressional Research Service. John Tyler became the first impeachment target, two years into his presidency in 1843, for exercising the president's constitutional power to veto a bill passed by Congress; the House rejected the resolution. None of the others was brought to the House floor.
Three presidents faced possible impeachment on their way out of the White House. Grover Cleveland faced a miscellany of politically charged accusations in an unsuccessful resolution introduced in the final year of his second term. Herbert Hoover similarly faced a mishmash of politically motivated accusations in December 1932 after he had been defeated for re-election. In a more recent instance, Harry Truman faced impeachment in his final year in office for seizing the shut down steel mills to keep them operating during the Korean War.
Two presidents, Ronald Reagan and George H.W. Bush, were accused in unsuccessful impeachment resolutions of exceeding presidential powers by launching overseas wars: Reagan's invasion of Grenada in 1983 and Bush's Desert Storm war in Kuwait in 1991. Reagan also survived a second-term impeachment attempt over the Iran-contra affair.
Those efforts, just like the one against Trump, arose from partisan disagreements whatever their underlying substance. In Trump's case, the accusations stand of their own weight despite their partisan motivations; the president and his supporters have little by way of defense except to rely on immunity supposedly created by winning election.
Trump himself admitted, belatedly, that he fired Comey to thwart the Russia investigation. That may not be obstruction for criminal law purposes, but qualifies in an impeachment trial. He has clearly violated the Foreign Emoluments Clause from the patronage of foreign governments at Trump properties, including the Trump Hotel in Washington, and from regulatory benefits extended to Trump businesses in many countries  China, most recently. As for the Domestic Emoluments Clause, the White House itself is paying Trump properties for all the days that the president has spent at Mar-a-Lago, among others.
Trump is accused of undermining the independence of the judiciary and the rule of law by his race-based campaign-time criticism of the federal judge overseeing the civil suit against Trump University, his White House criticism of the judges handling the Muslim travel ban cases, and his pardoning of Arizona's contempt-of-court sheriff Joe Arpaio.
As for freedom of the press, Trump commended a literal "beat the press" policy to his supporters during the campaign and has kept up his "Fake News" drumbeat in the White House. The specifics cited make clear that Trump's efforts to undermine the press go far beyond the ordinary, to-be-expected adversary relationship between the White House and the press.