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May Congress Sue the Executive Branch? Court Hears Cases on Subpoena and Border Wall – The New York Times

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May Congress Sue the Executive Branch? Court Hears Cases on Subpoena and Border Wall – The New York Times_5ea8b83c40512.jpeg

WASHINGTON — A federal appeals court heard arguments on Tuesday in a pair of cases involving disputes between President Trump and the Democrat-controlled House that each raise a technical, yet constitutionally momentous, question: May a chamber of Congress sue the executive branch?

In more than two hours of arguments before the Court of Appeals for the District of Columbia Circuit, many of the judges appeared to be looking for a way to side with the House without opening the door to a floodgate of future lawsuits over routine political fights. The disputes involve a subpoena to a former White House lawyer and spending on a border wall.

The eventual ruling by nine of the 11 active appeals court judges — two others, both former White House aides to Mr. Trump, recused themselves — may only be a way station for the dispute. The losing side is likely to appeal to the Supreme Court for a definitive pronouncement, given the long-term constitutional stakes.

“These cases, both of them, are big deals,” Judge Patricia Millett said during the arguments.

Douglas Letter, the general counsel for the House, agreed with her. He said that if the court accepted the Justice Department’s argument that the House has no standing to sue the executive branch, “congressional oversight as it has been known in this country for years is going to change and be very different.”

Because of the coronavirus pandemic, the court heard the arguments by teleconference, prompting some confusing moments. One judge left the phone line open without muting and someone could be heard talking as a colleague questioned the Justice Department lawyer, Hashim Mooppan. The audio feed, streaming online for the public, cut out at times.

The substance of the two lawsuits is significantly different.

The case over the subpoena to Mr. Trump’s former White House counsel, Donald F. McGahn II, pits a president’s power to keep information secret against Congress’s power to gather information for oversight and potential impeachment. The House subpoenaed Mr. McGahn for testimony about Mr. Trump’s attempt to obstruct the Russia investigation, but the administration argued that top White House aides are immune from subpoenas about their official duties.

The case over the border wall involves the scope of Congress’s power to control how taxpayer funds are spent. After Congress balked at spending as much on Mr. Trump’s signature border wall with Mexico as he wanted — an impasse that led to the longest government shutdown in history — Mr. Trump declared a national emergency and claimed he could redirect military funds appropriated for other things for use in wall construction.

The House filed lawsuits in both cases — a tactic that was once vanishingly rare but has become increasingly common — and each ran into the same roadblock: The administration argued that the House has no standing to go to court and seek judicial adjudication of such a dispute — even if a president is, in theory, acting illegally. Instead, it argued, lawmakers have to rely on political tools, like withholding funds for a presidential policy or impeachment.

Mr. Mooppan pressed forward with that argument on Tuesday, contending that there was scant history of a chamber of Congress filing a lawsuit challenging an executive branch action, and that protecting its institutional interest in getting information or making spending decisions was not the kind of individualized injury that creates legitimate standing to sue.

“Adjucating such interbranch disputes would shift power from the executive branch to the legislature and politicize the judiciary,” he said, adding, “Judicial interventional in this political tug of war risks damaging public confidence in the impartiality of this circuit.”

But Mr. Letter argued that such lawsuits had been rare because unlike Mr. Trump, previous presidents of both parties negotiated accommodation with Congress in disputes over access to information, and that no president had blown through the norms of self-restraint on federal spending and emergency power like Mr. Trump had done.

The arguments came one day after the Trump administration notified Congress of its latest maneuver in shifting around Pentagon money to use military funds for wall construction.

In a memo obtained by The New York Times, Defense Secretary Mark T. Esper said he was restoring funding for 22 military construction projects that he had previously deferred to take their funding for Mr. Trump’s wall, and instead placed 19 other projects on the deferred projects list.

The newly deferred projects include an $11.8 million detainee legal office and communications center at Guantánamo Bay, Cuba, and more than $270 million in projects associated with a program the United States started to deter Russian aggression in Europe after it annexed Crimea from Ukraine. The move prompted fresh expressions of outrage from Democrats, who once again accused Mr. Trump of acting lawlessly.

The Trump administration’s conduct received little friendly discussion from the bench, either. Judge Thomas B. Griffith, an appointee of President George W. Bush who wrote an earlier, now essentially erased decision for a panel saying Congress had no standing to sue over the McGahn subpoena, spoke acidly of Mr. Trump’s uncompromising response to oversight.

“How is Congress to conduct its constitutional duty of oversight in the face of the type of utter disregard this administration has shown for that oversight?” he asked Mr. Mooppan. “Hasn’t this administration eschewed the traditional norms of compromise and negotiation you rely upon in your argument so heavily?”

Mr. Mooppan, however, defended Mr. Trump’s record as similar to that of previous presidents.

Mr. Letter told the judges that permitting lawsuits to enforce subpoenas would not lead to a flood of such litigation because they took so long that Congress would only use them as a last resort. But it could make a big difference, he said, because knowing lawmakers could sue in theory would create an incentive for future presidents to negotiate compromises.

He also said that the court could draft a narrow opinion permitting congressional lawsuits over alleged misspending of public funds without opening the door to lawsuits whenever there is a dispute over how to interpret the scope of a president’s legal authority. But Mr. Mooppan argued that it would not be so simple to prevent a deluge of litigation.

Although there is no fixed partisan implication to the dispute — the two parties trade control of the White House and Congress — judges appointed by Republican presidents have sided with the Trump administration in the two cases, while judges appointed by Democratic presidents have sided with the House.

If that pattern continues, the appeals court appears likely to side with the House: Without the two recused appointees of Mr. Trump, it has seven appointees of Democratic presidents and two of Republican ones. But at the Supreme Court, five of the nine justices are Republican appointees.

Emily Cochrane contributed reporting.

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Cabinet slashes budgets to pay for 6 new ministries, including ‘alternate PM’ – The Times of Israel

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Cabinet slashes budgets to pay for 6 new ministries, including ‘alternate PM’ – The Times of Israel_5ed43a3d6fdc5.jpeg

The cabinet on Sunday approved widespread fiscal reforms that will cut the budgets of most ministries in order to fund the establishment of six new ministries, including the office of the “alternate prime minister,” in a series of controversial decisions.

A unity coalition deal between Likud’s Benjamin Netanyahu and Blue and White’s Benny Gantz ended over a year of political deadlock when the most minister-rich government in Israel’s history was sworn in earlier this month. New ministerial positions were created to accommodate the cabinet’s 33 ministers, who number over a quarter of the Knesset’s 120 lawmakers.

The price tag for the overhead costs of the new government has been estimated as high as a billion shekels ($285 million) over its three-year span. There have been widespread accusations that the government is overlarge and costly at a time when the economy is being ravaged by the COVID-19 pandemic.

Among the new offices created Sunday was the Alternate Prime Minister’s Office, which will be held by Defense Minister Gantz for 18 months and then be transferred to Netanyahu as part of a power-sharing deal designed to allow him to keep the prime ministerial title even after vacating the post. Unlike other ministers, a prime minister can remain in his post even after he is indicted on criminal charges.

Other offices are Ze’ev Elkin’s Water Resources and Higher Education ministries; Orly Levy-Abekasis’s Ministry of Community Empowerment; David Amsalem’s Cyber Ministry; and Tzipi Hotovely and Tzachi Hanegbi’s Settlements Ministry.

Gantz — who is currently defense minister, in addition to the new post of alternate premier — is set to take over as prime minister in 18 months under the coalition deal, at which point Netanyahu will become alternate prime minister.

As the Alternate Prime Minister’s Office was approved, Netanyahu on Sunday denied reports that the alternate prime minister would also be granted an alternate prime minister’s residence. “It’s not true. It didn’t come up and it won’t,” he said.

Prime minister Benjamin Netanyahu (right) and Defense Minister Benny Gantz are seen at the Knesset, May 17, 2020. (ALEX KOLOMOISKY/POOL)

In order to create the new posts, ministers approved a government decision that will see a 1.5% cut to the budgets of all government offices, specifically at the upper personnel level. The move will slash 300 posts from the various offices to free up some NIS 100 million ($28.5 million).

Foreign Minister Gabi Ashkenazi opposed the budget cuts to foreign service, whereupon the cuts to his ministry were reduced from NIS 11.5 million ($3.2 million) to NIS 4.8 million ($1.3 million), the Walla news site reported.

Incoming Foreign Minister Gabi Ashkenazi, right, with his predecessor, incoming Finance Minister Israel Katz, at the Foreign Ministry in Jerusalem, May 18, 2020 (Foreign Ministry)

On the 22-item agenda, the cabinet was also voting on filling the Ministerial Committee for Legislation, led by Blue and White’s Avi Nissenkorn, and other ministerial panels; appointing directors general of the defense and economy ministries; and giving the green light to new Finance Minister Israel Katz’s program to encourage employment amid the pandemic.

In a Saturday night address, Katz presented his new Finance Ministry plan aimed at encouraging employers to take back employees placed on unpaid leave during the height of the pandemic in March. For every employee called back, places of business will receive a grant of NIS 7,500 ($2,141) starting on June 1, according to the plan. An additional grant of some NIS 3,500 ($1,000) will be handed out to employers for employees called back in May. Katz said some NIS 500 million ($142 million) have been allocated for businesses that would put employees back to work.

Economy Minister Amir Peretz opposed the treasury proposal during the meeting, arguing that it rewards employers who dropped their workers while harming those who kept their employees on the payroll even at a loss, according to the Globes business daily.

Katz retorted: “There is an alternate prime minister. There is no alternate finance minister. I am the finance minister and I will lead the implementation of the government decisions, which I proposed, and which were accepted by an overwhelming majority,” the Ynet news site reported.

Incoming Economy Minister Amir Peretz at a changeover ceremony in Jerusalem on May 18 2020. (Yonatan Sindel/Flash90)

Sunday’s cabinet meeting also saw Housing Minister Yaakov Litzman and Interior Minister Aryeh Deri receive building and planning powers that were previously under the treasury’s purview, while the Health Ministry was granted additional powers to combat the coronavirus.

The meeting on Sunday was held in the Foreign Ministry’s auditorium as the regular cabinet meeting rooms were not large enough to accommodate all the ministers while maintaining social distancing, according to reports.

Opposition chairman Yair Lapid issued a statement blasting the government after ministers approved funding for the newly formed offices created by the Gantz-Netanyahu coalition deal.

“The government handed half a billion shekels to itself today. Not for the self-employed, not for the unemployed, not for small businesses, but for itself,” said Lapid.

Opposition leader Yair Lapid at the Knesset as the 35th government of Israel is presented on May 17, 2020. (Knesset/Adina Veldman)

“For redundant offices like the Water Resources Ministry, the nonexistent Community Empowerment Ministry and for deputy ministers that no one needs. Detached lawmakers, we’ve had enough of you.”

Separately, last Wednesday,  a bill allowing ministers to give up their positions as Knesset members in order to enable a different member of their party slate to take their spot in parliament passed its preliminary Knesset plenary reading. The so-called Norwegian Law — which still requires three more votes to become law — would allow any MK who is appointed to a cabinet post to resign temporarily from the Knesset, thereby permitting the next candidate on the party’s list to enter parliament in his or her stead.

The opposition has blasted the bill, and the coalition’s rush to pass it, as a way of pushing more people into sweetheart jobs on the taxpayers’ dime.

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Tapper: Some of Trump’s allies think he’s not up to the task – CNN

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In Days of Discord, President Trump Fans the Flames – The New York Times

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In Days of Discord, President Trump Fans the Flames – The New York Times_5ed43a2a0f874.jpeg

WASHINGTON — With a nation on edge, ravaged by disease, hammered by economic collapse, divided over lockdowns and even face masks and now convulsed once again by race, President Trump’s first instinct has been to look for someone to fight.

Over the last week, America reeled from 100,000 pandemic deaths, 40 million people out of work and cities in flames over a brutal police killing of a subdued black man. But Mr. Trump was on the attack against China, the World Health Organization, Big Tech, former President Barack Obama, a cable television host and the mayor of a riot-torn city.

While other presidents seek to cool the situation in tinderbox moments like this, Mr. Trump plays with matches. He roars into any melee he finds, encouraging street uprisings against public health measures advanced by his own government, hurling made-up murder charges against a critic, accusing his predecessor of unspecified crimes, vowing to crack down on a social media company that angered him and then seemingly threatening to meet violence with violence in Minneapolis.

As several cities erupted in street protests after the killing of George Floyd, some of them resulting in clashes with the police, Mr. Trump made no appeal for calm. Instead in a series of tweets and comments to reporters on Saturday, he blamed the unrest on Democrats, called on “Liberal Governors and Mayors” to get “MUCH tougher” on the crowds, threatened to intervene with “the unlimited power of our Military” and even suggested his own supporters mount a counterdemonstration.

The turmoil came right to Mr. Trump’s doorstep for the second night in a row on Saturday as hundreds of people protesting Mr. Floyd’s death and the president’s response surged in streets near the White House. While most were peaceful, chanting “black lives matter” and “no peace, no justice,” some spray painted scatological advice for Mr. Trump, ignited small fires, set off firecrackers and threw bricks, bottles and fruit at Secret Service and United States Park Police officers, who responded with pepper spray.

The police cordoned off several blocks around the Executive Mansion as a phalanx of camouflage-wearing National Guard troops marched across nearby Lafayette Square. A man strode through the streets yelling, “Time for a revolution!” The image of the White House surrounded by police in helmets and riot gear behind plastic shields fueled the sense of a nation torn apart.

Mr. Trump praised the Secret Service for being “very cool” and “very professional” but assailed the Democratic mayor of Washington for not providing city police officers to help on Friday night, which she denied. While governors and mayors have urged restraint, Mr. Trump seemed more intent on taunting the protesters, bragging about the violence that would have met them had they tried to get onto White House grounds.

“Big crowd, professionally organized, but nobody came close to breaching the fence,” the president wrote on Twitter on Saturday morning. “If they had they would have been greeted with the most vicious dogs, and most ominous weapons, I have ever seen. That’s when people would have been really badly hurt, at least. Many Secret Service agents just waiting for action.”

His suggestion that his own supporters should come to the White House on Saturday foreshadowed the possibility of a clash outside his own doors. “Tonight, I understand, is MAGA NIGHT AT THE WHITE HOUSE???” he wrote on Twitter, using the acronym for his first campaign slogan, “Make America Great Again.”

Asked about the tweet later, he denied encouraging violence by his supporters. “They love African-American people,” he said. “They love black people. MAGA loves the black people.” By evening, however, Mr. Trump’s supporters were not in evidence among the crowds at the White House.

Mayor Muriel E. Bowser of Washington responded sharply on Saturday morning, saying her police department will protect anyone in Washington, including the president, and by Saturday evening her officers were out in force around the White House.

But she called the president a source of division. “While he hides behind his fence afraid/alone, I stand w/ people peacefully exercising their First Amendment Right after the murder of #GeorgeFloyd & hundreds of years of institutional racism,” she wrote. “There are no vicious dogs & ominous weapons. There is just a scared man. Afraid/alone …”

After his morning barrage, Mr. Trump tried to recalibrate later in the day, devoting the opening of a speech at the Kennedy Space Center following the SpaceX rocket launch to the unrest in the streets and clearly trying to temper his bellicose tone.

“I understand the pain that people are feeling,” he said. “We support the right of peaceful protesters and we hear their pleas. But what we are now seeing on the streets of our cities has nothing to do with justice or peace. The memory of George Floyd is being dishonored by rioters, looters and anarchists.”

The days of discord have put the president’s leadership style on vivid display. From the start of his ascension to power, Mr. Trump has presented himself as someone who seeks conflict, not conciliation, a fighter, not a peacemaker. That appeals to a substantial portion of the public that sees in him a president willing to take on an entrenched and entitled establishment.

But the confluence of perilous health, economic and now racial crises has tested his approach and left him struggling to find his footing just months before an election in which polls currently show him behind.

“The president seems more out-of-touch and detached from the difficult reality the country is living than ever before,” said Carlos Curbelo, a former Republican congressman from Florida who has been critical of Mr. Trump. “At a moment when America desperately needs healing, the president is focused on petty personal battles with his perceived adversaries.”

Such a moment would challenge any president, of course. It has been a year of national trauma that started out feeling like another 1998 with impeachment, then another 1918 with a killer pandemic combined with another 1929 given the shattering economic fallout. Now add to that another 1968, a year of deep social unrest.

It is fair to say that 2020 has turned out to be a year that has frayed the fabric of American society with an accumulation of anguish that has whipsawed the country and its people. But in some ways, Mr. Trump has become a totem for the nation’s polarization rather than a mender of it.

“I am daily thinking about why and how a society unravels and what we can do to stop the process,” said Timothy Naftali, a presidential historian at New York University. “The calamity these days is about more than Trump. He is just the malicious con man who lives to exploit our vulnerabilities.”

As the nation has confronted a coronavirus pandemic at the same time as the greatest economic catastrophe since the Great Depression, whatever unified resolve that existed at the beginning of the twin crises quickly evaporated into yet another cultural clash. And the president has made everything into just another partisan dispute rather than a source of consensus, from when and how to reopen to whether to wear a mask in public.

Mr. Trump led no national mourning as the death toll from the coronavirus passed 100,000 beyond lowering the flags at the White House, posting a single tweet and offering a passing comment on camera only when asked about it. Rather than seek agreement on the best and safest way to restore daily life, he threatened to “override” governors who prevented places of worship from resuming crowded services.

“Crisis leadership demands much more from the White House than irresponsible threats on social media,” said Meena Bose, director of the Peter S. Kalikow Center for the Study of the American Presidency at Hofstra University.

Mr. Trump’s initial response to the rioting in Minneapolis, where a police officer has been charged with murder after kneeling on Mr. Floyd’s neck for nearly nine minutes as he cried out that he could not breathe, underscored the president’s most instinctive response to national challenges. Threatening to send in troops, he wrote early Friday morning that “when the looting starts, the shooting starts.”

Only after a cascade of criticism did he try to walk it back, posting a new tweet 13 hours later, suggesting that all he had meant was that “looting leads to shooting” by people in the street.

“I don’t want this to happen, and that’s what the expression put out last night means,” he said, a reformulation that convinced few if any of his critics.

Even some of Mr. Trump’s usual allies were distressed at the original shooting tweet. Geraldo Rivera, the television and radio host who often spends time with Mr. Trump at the president’s Mar-a-Lago club in Florida, decried “the recklessness” of that message and called on the president “to self-censor himself.”

“Come on, what is this, sixth grade?” Mr. Rivera said on Fox News. “You don’t put gasoline on the fire. That’s not calming anybody.” He added: “All he does is diminish himself.”

But many of the president’s defenders rejected the idea that he had mishandled the crises, pressing the argument that Democrats and the news media were to blame for the turmoil in the streets, which spread from Minneapolis to New York, Atlanta, Washington, Louisville, Portland and other cities.

“Keep track of cities where hundreds of millions of dollars in property damage and serious injuries and death will take place,” Rudolph W. Giuliani, the former New York mayor who has served as Mr. Trump’s personal lawyer, wrote on Twitter on Friday night. “All Democrat dominated cities with criminal friendly policies. This is the future if you elect Democrats.”

Bernard B. Kerik, the former New York City police commissioner who was pardoned by Mr. Trump for tax fraud earlier this year, amplified the point on Twitter. “It should be no surprise that every one of these cities that the anarchist have taken over, are the same cities run by leftist Democrats with the highest violence, murder and poverty rates,” he wrote on Twitter. “They can’t handle their cities normally, so how are they going to deal with this?”

Mr. Trump, who this past week retweeted a video of a supporter saying that “the only good Democrat is a dead Democrat” (though the supporter insisted he meant that in a political sense), picked up the theme on Saturday.

With crowds visible from his upstairs windows, Mr. Trump reached for his phone and again assailed the “Democrat Mayor” of Minneapolis for not responding more vigorously and called on New York to unleash its police against crowds. “Let New York’s Finest be New York’s Finest,” he wrote. “There is nobody better, but they must be allowed to do their job!”

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