Monday, February 22, 2021

A Trump Holdover Sued Biden for Firing Him. Is His Lawsuit a Joke or a Trap? (Slate)

Excellent but flawed article from Slate on a federal agency I helped get abolished 1995-2010.

Since 1986, I've investigated the Administrative Conference of the United States, which Congress rightly abolished from 1995-2010 by defunding it.  

My 1989 Common Cause Magazine and other writings exposed it, and United States Department of Labor Chief Administrative Judge Nahum Litt and ALJ Charles P. Rippey, my late mentors, helped expose it.  Bipartisan members of both houses of Congress included appropriations report langauge blasting ACUS.  ACUS ignored it. Congress defunded ACUS, which ceased to exist from 1995-2010.

The article omits the reasons why ACUS was abolished 1995-2010.

While Washington Post colonist Colman McCarthy and U.S. Supreme Court Justices Antonin Scalia and Stephen Bryer urged ACUS be re-established, theynfailed,

Lleaders like Democratic U.s. Rep. Steny Hoyer and other legislators agreed with the judges and me, not McCarthy, Scalia and Breyer, 

ACUS produced useless studies by pliable law professors, while passing rebarbative resolutions at the behest of Big Government  and Big Business.  

Their authoritarian agenda; urging Congressional and governmental actions to gut FOIA, gut Sunshine, and inflict corporate and governmental nostrums upon litigants, including being a whore for forced arbitration, violating our Seventh Amendment right to civil jury trial, intended as a "bulwark agains oppression," as Justice William Rehnquist said it best before he became Chief Justice. 

Chief Judge Litt sent me to a two-day ACUS meeting in December 1986. Upon my return, he asked what I thought.  I said, "I think they're a bunch of fascists.  Judge Litt agreed,

My research showed that ACUS ceased being a force for good when Presdients Reagan and Bush installed right-wingers at ACUS, including the likes of the late Phyllis Schlaffly.  With some 100 members, ACUS heavily favored corporate and government lawyers, with only one of the 100 being a public interest lawyer.  

Ralph Nader's Public Citizen Litigation Group lawyer Alan Morrison agreed with me that ACUS violated the Federal Advisory Committee Act, without a fairly balanced membership, 

But Mr. Morrison demurred on suring ACUS, because "They return my phone calls."  He said its on tape. What narcissism.

ACUS minions whined that I was "trying to crucify" then,

Nonetheless, we persisted.

In 1995, under Gingrich, Republicans and Democrats defunded ACUS.

Fifteen years later, ACUS was funded again.

Has ACUS learned its lesson

To Slate:  you got the ACUS story half-right.  

But under Reagan, in the words of Chief Judge Nahum Litt, ACUS became "the Heritager Foundation metastasized."

From Slate:


A Trump Holdover Sued Biden for Firing Him. Is His Lawsuit a Joke or a Trap?

Roger Severino speaks at an event.
Roger Severino in D.C. in 2018. Jacquelyn Martin/AP

Since taking office, President Joe Biden has prioritized rooting out Trump holdovers who were installed to sabotage government agencies. On Tuesday, he continued to clean house. He demanded the resignations of four people whom Donald Trump appointed to the council of the Administrative Conference of the United States, a little-known but influential federal agency. One council member, Vice Chair Jennifer Dickey, resigned in accordance with the president’s request. Three others—Andrew Kloster, Roger Severino, and Daniel Z. Epstein—refused to resign, so Biden fired them on Wednesday. All four members were far-right partisan activists who worked in another position within the Trump administration before joining ACUS. Severino, who previously led Trump’s campaign to legalize anti-LGBTQ discrimination in health care, sued Biden on Wednesday evening. He alleges that Biden had no authority to fire him and demands that he be reinstated immediately.

Severino’s lawsuit betrays a foundational principle of the modern conservative legal movement. Right-wing scholars have long argued the president is “unitary executive” with constitutional power to fire officials within the executive branch. It is possible that Severino is simply a hypocrite who will abandon his beliefs to claw back his old job and accuseBiden of abandoning “unity.” But the choice to take his fight to the courts could also be an attempt to tank precedent protecting the independence of certain executive branch officials. The reality is that Biden had the authority to remove Severino, along with Dickey, Kloster, and Epstein—not because of the “unitary executive,” but because a federal statute gives him that right. Severino’s lawsuit may well be a bomb intended for the administrative state. His lawsuit, however, seems more likely to blow up in his face.

ACUS might be a relatively obscure agency, but it has a significant impact on federal regulations (and, by extension, the entire country). It’s tasked with recommending improvements to regulatory processes across the government. The ACUS council, which serves as a kind of board of directors, is divided between private citizens (who are not employed by the government outside of ACUS) and government officials (who also hold another position elsewhere in the administration). The council decides which projects to undertake and where to direct the agency’s focus. A 101-member assembly then crafts recommendations based on projects approved by the council. When ACUS puts its stamp of approval on a certain idea, other agencies—as well as Congress and federal courts—are more likely to consider it legitimate. Thus, while ACUS exercises little to no power on its own, it has substantial sway over the regulatory rulebook. When the agency makes a recommendation, the rest of the government pays attention.

Congress intended ACUS to be nonpartisan. Trump appointed only far-right activists.

Under Trump’s appointees, those recommendations seemed designed to obstruct regulations and push partisan right-wing priorities. “The projects it selects to undertake are very much right out of the Federalist Society’s playbook,” an individual who works closely with ACUS told me. (The individual asked to remain anonymous because he frequently works with ACUS assembly members.) Republicans have discovered that they can “launder conservative ideas through this government agency,” he added, giving these ideas “a nonpartisan, government-approved sheen” that they don’t deserve. James Goodwin—a senior policy analyst at the Center for Progressive Reform who has worked with ACUS co-sponsoring events, participating in public meetings, and commenting on draft reports—agrees. “Industry folks launder their ideas through ACUS,” Goodwin told me. Under Trump, ACUS became “a useful accomplice for the right wing.”

For example, in 2020, ACUS promoted a “rule on rules” that encourages other agencies to develop elaborate restrictions on their own ability to write new regulations. It has also urged agencies to perform cost-benefit analyses on a broad range of regulations whose benefits are intangible. The advantages of a rule barring discrimination or limiting pollution, for instance, cannot always be quantified. So if the agency performs a cost-benefit analysis (as ACUS advises), it might seem as if the rule is too expensive to justify. And if it doesn’t perform a cost-benefit analysis, a federal court might block the rule, finding that the agency wrongly ignored what ACUS deems to be best practice.

Congress intended ACUS to be nonpartisan, and in the decades after its creation in 1964, it met this requirement. Republicans defunded the agency in 1995, deeming it useless, but when Democrats revived it in 2010, they carried on its bipartisan tradition: President Barack Obama appointed both Democrats and Republicans to its council, including Federalist Society leaders Ron Kass and Ted Olson.

Trump, by contrast, has appointed only far-right activists. While serving in the Department of Health and Human Services, for instance, Severino wrote a rule allowing health care providers to discriminate against LGBTQ patients. He justified this policy by asserting, without evidence, that thousands of people would refuse to enter the medical field if forced to serve LGBTQ people. (He exempted the rule, which was obviously illegal, from rigorous cost-benefit analysis to avoid identifying its actual impact on access to health care.) Other Trump appointees, like Matthew Morgan, lack any experience with administrative law and were appointed because they worked on the former president’s campaign.

During his final week in office, Trump tried to game the system to “burrow in” his ACUS appointees. Just before leaving the White House, he reappointed Jennifer Dickey and Roger Severino—who were already serving on the council—to restart their three-year terms. These reappointments were never announced publicly, and only announced internally at ACUS after Biden took office, perhaps to limit backlash.

Severino’s lawsuit seems designed to invite the Supreme Court to overrule an old precedent scorned by Republicans called Humphrey’s Executor. In that decision, SCOTUS allowed Congress to prevent the president from firing officials who serve on multimember boards at executive agencies and do not exercise purely executive powers. In his lawsuit, Severino cited Humphrey’s Executor to bolster his claim that Biden cannot sack him. He suggested that, because he is part of a multimember agency that doesn’t “wield substantial executive power,” Humphrey’s Executor protects him against termination.

This argument is surprising, to put it mildly. While Severino has not explicitly disavowed the precedent, most of today’s conservatives view Humphrey’s Executor as a betrayal of the “unitary executive.” Kloster, Severino’s former ACUS colleagues, implied that Severino intends to use his lawsuit as a bludgeon against the precedent. Moreover, Severino is represented by Jonathan Mitchell, an adamant and litigious foe of the administrative state. By resting their case on Humphrey’s Executor, Severino and Mitchell may be trying to give the federal judiciary an opportunity to reverse the precedent, thereby bolstering the “unitary executive.” But there are good reasons to believe the judiciary will not take up this offer.

First, Biden only fired council members who were serving in another position within the government when appointed to ACUS. He conspicuously declined to terminate members who were appointed as private citizens, including the disgraced conspiracy theorist Adrian Vermeule. Federal law states that “the service of any member ends when a change in his employment status would make him ineligible for Council membership under the conditions of his original appointment.” This provision strongly suggests the four fired council members’ terms expired with Trump’s term. Supreme Court litigator Deepak Gupta told me the statute “means that Trump administration officials had to go when the administration ended at noon on Jan. 20.”

Gupta pointed out a second problem with Severino’s lawsuit: Federal law does not protect members of the ACUS council from removal in the first place. Typically, when Congress wants to shield an official from removal at will, it explicitly limits the president’s ability to remove them. Congress did no such thing here; it merely gave members three-year terms, subject to the limitation for government members. Given the Supreme Court’s skepticism toward job protections for executive officials, there is no real chance the justices would go beyond the plain text of the statute to identify some implicit shield against early termination.

Finally, Severino’s lawsuit states that ACUS “does not wield any executive power” because it is “purely advisory.” That admission takes this case out of the “unitary executive” danger zone. Gupta told me the case “doesn’t even implicate” deeper questions about presidential authority: Severino isn’t exercising executive power, but rather providing advice to the president, and as a general rule, the president gets to pick his own support staff.

Severino isn’t the only disgruntled Trump holdover angry that Biden fired him. The new president has removed several other high-ranking Trump appointees after they refused his request for resignation. At this pace, it’s inevitable that Biden will get hit with more lawsuits that put conservatives in the awkward position of relying on a precedent they purport to despise. Severino’s lawsuit could be the start of a grand plan to eradicate Humphrey’s Executor. Or it could be nothing more than the irate gripe of a Republican operative who thinks he has a constitutionally guaranteed right to subvert the new administration from within.

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