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Feb. 27, 2020 by David Driesen

Will the Supreme Court Create a Pathway to Autocracy in Consumer Protection Agency Case?

On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.

The blessings of liberty in this country and other functioning democracies depend in important ways on something that legal scholars call the “internal separation of powers.” Prosecutors in robust democracies, for example, enjoy some separation from the head of state, as they are expected to apply the law neutrally. In early America, prosecution was lodged outside of presidential control, among private citizens, state officials, and distant United States Attorneys. Electoral commissions and media regulators, here and …

March 14, 2019 by David Driesen
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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 …

Feb. 20, 2019 by David Driesen
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Originally published in The Regulatory Review. Reprinted with permission.

President Donald J. Trump has declared a national emergency to justify building a wall on the U.S. southern border, which Congress refused to fund. But Mexicans and Central Americans coming to our country in search of a better life does not constitute an emergency. Immigration at the southern border is neither new, sudden, nor especially dangerous. The number of immigrants has been declining for years and crime rates among immigrants are lower than among native-born Americans. Drug trafficking exists at the open southern border, but it pales by comparison with drug trafficking across legal ports of entry. And President Trump did not treat this as a legal emergency until he lost his battle for funding in Congress.

Notwithstanding the bogus nature of the current crisis, legal experts fear that the Supreme Court will turn a blind eye …

July 9, 2018 by David Driesen
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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 …

March 7, 2017 by David Driesen
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This op-ed originally ran in The Hill.

The Feb. 28 executive order overturning a Clean Water Act rule clarifying EPA's jurisdiction over wetlands furnishes but the latest example of President Trump's propensity to rule by almost daily fiat. Trump has ruled by decree ever since he assumed office. He has not proposed a single bill to our elected representatives, not even a bill to help blue-collar workers and rebuild America through infrastructure projects, one of his main campaign promises. Nor has he supported a bill introduced by others to accomplish this.

Our Constitution, however, authorizes an elected legislature to establish laws and directs the president only to "faithfully execute" them. And it requires all government officials to swear an oath to obey the law. The introduction of the oath clause into our Constitution marked a sharp departure from prior practice, under which government officials swore …

Feb. 6, 2017 by David Driesen
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To carry out their duty under the Constitution, senators must ask themselves the following question when considering a president's cabinet nominee: Will this person faithfully execute the laws, even if the president wishes to ignore them and carry out a contrary policy? Unless the answer to that question is a clear "Yes," they must reject the nominee. 

Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating candidates "personally allied to him" lest we have office holders with the "pliancy to render them obsequious instruments of his pleasure." The founders required Senate approval of "officers of the United States" to make sure that the executive branch faithfully executes the law, rather than formulates policy on its own. To that end, the Constitution requires all federal officeholders to swear an oath, not to …

Jan. 30, 2017 by David Driesen
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Donald Trump based his candidacy on the claim that he would serve working-class people who established politicians have neglected. He promised $1 trillion of infrastructure investment over 10 years, which could generate a lot of blue-collar employment while potentially repairing crumbling bridges and roads, replacing antiquated wastewater treatment systems (in Flint and elsewhere), and creating a mass transit system that could move us into the 21st century in that realm. A sound infrastructure program, unlike anything else that Trump has proposed, really would grow the economy and help hard-hit workers across the country. 

Unfortunately, he did not propose that government raise and spend $1 trillion on infrastructure. Instead of funding his program with a modest tax increase and bond revenue, he promised a $9 trillion tax cut primarily benefitting wealthy people like himself. 

He has tried to square the circle by suggesting that the government offer $137 …

Sept. 8, 2016 by David Driesen
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The Clean Power Plan has been widely touted as significant because it regulates the largest source of carbon dioxide (CO2) emissions in the United States – the electric power industry. Its significance, however, goes beyond U.S. CO2 emissions because it serves as the linchpin of international efforts to reduce greenhouse gases in order to avoid dangerous climate disruption. The rule gave the Obama administration sufficient credibility to persuade the Chinese to pledge limits on their own greenhouse gas emissions for the first time and paved the way for worldwide pledges of significant emission reductions at the Paris Conference last December. If the U.S. fails to promptly implement this rule because of an unfavorable judicial ruling, the Paris agreement could unravel, as developing countries do not consider it equitable to demand reductions from them without significant reductions by the United States and other wealthy countries …

Sept. 8, 2016 by David Driesen
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The U.S. Environmental Protection Agency's (EPA's) Clean Power Plan (CPP) relies, in part, on a pollution reduction strategy – generation shifting – that is at issue in the ongoing lawsuit over the rule. Generation shifting involves increasing use of relatively clean natural gas and renewable energy and reducing use of relatively dirty and expensive coal-fired power plants. Although the technique has lowered power plant emissions significantly in recent years, opponents of the CPP have argued in legal briefs that section 111 of the Clean Air Act precludes relying on generation shifting to reduce carbon dioxide emissions. They claim the technique somehow does not lead to reductions at a pollution source, but their argument doesn't hold up under scrutiny. Generation shifting does reduce emissions at each pollution source that takes advantage of the technique and therefore passes muster. 

Some explanation of section 111 and the CPP …

June 2, 2016 by David Driesen
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During the last few years, airlines have increased their reliance on "bait-and-switch" scheduling. They induce travelers to choose their airline based on advertised routes and schedules. They know that especially good routes are valuable and generally charge more for a good route than a bad one. Long after travelers have taken the bait, often paying more than the lowest available price to avoid delay-prone airports, long layovers, and multiple stops, the airlines simply switch around the schedule. While many of these changes can be minor, changing departure and arrival times by 10 or 20 minutes, increasingly airlines feel no compunction at all about completely tearing up the deal they made, adding stops, drastically increasing layover times, and routing the hapless traveler through a different city than she would have selected when she had a choice. They often make these changes just a few weeks in advance, when …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Feb. 27, 2020

Will the Supreme Court Create a Pathway to Autocracy in Consumer Protection Agency Case?

March 14, 2019

Oversight, Executive Orders, and the Rule of Law

Feb. 20, 2019

Trump's 'Emergency' and the Constitution

July 9, 2018

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

March 7, 2017

The Hill op-ed: Ruling by Decree

Feb. 6, 2017

The Cabinet and the Rule of Law

Jan. 30, 2017

Tax Credits and Public Spending on Infrastructure