Begging Your Pardon, Mr. President

‘You’re Fired,’ Trump Should Tell Richard Cordray

Under a dubious statute, the CFPB head can be dismissed only for cause—but there’s plenty of it.

By David B. Rivkin Jr. and Andrew M. Grossman

April 13, 2017, in the Wall Street Journal

The greatest mystery in Washington involves not Russian spies or wiretaps but Richard Cordray’s continued employment as director of the Consumer Financial Protection Bureau. In the face of President Trump’s mandate for change, Mr. Cordray continues the Obama administration’s regulatory crusade against lenders, blocking access to the credit that supports so many small businesses and so much consumer spending.

Why would a president who made a TV show out of firing underlings now suffer a subordinate who refuses to get with the pro-growth agenda he campaigned on? If reports from the West Wing are to be believed, Mr. Trump’s unusual timidity is the result of overcautious legal and political advice.

Mr. Cordray is insulated from presidential control by a New Deal-era innovation: a statutory clause that allows the president to fire an independent agency head only “for cause,” meaning “inefficiency, neglect of duty, or malfeasance in office.” In October a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia struck down that restriction an infringement of the president’s constitutional authority to “take care that the laws be faithfully executed.”

When Congress created the CFPB by passing the Dodd-Frank Act of 2010, Judge Brett Kavanaugh explained, it broke with decades of historical practice. Generally the power of independent agencies is diffused among multiple commissioners or directors so as to reduce the risk of abuse. Unless he can be fired, Mr. Cordray, as the sole director of the CFPB, wields more unilateral power than any government official save the president. Read more »

The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Read more »

What Kind of a Judge Is Neil Gorsuch?

He carefully follows the law, and writes as engagingly as Scalia, without the abrasiveness.

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

The Wall Street Journal, Jan. 31, 2017 

Judge Neil Gorsuch, President Trump ’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals. In the decade since, he has written some 850 opinions.

The way to take a judge’s measure is to read his opinions, and so we set out to review Judge Gorsuch’s. It was not an arduous task, for his prose is unusually engaging—think Scalia, with none of the abrasiveness. Justice Elena Kagan has declared herself a fan of his writing style. The only difficulty in summarizing Judge Gorsuch’s output is the compulsion to quote, at length, from so many of his opinions.

One opens this way: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft.” The case, by the way, was a prosaic dispute between insurers. Another opinion starts: “What began as a fight at a strip club finds its way here as a clash over hearsay.”

Judge Gorsuch shows a concern for the people whose disputes are before the court. Each opinion typically begins with the name of the person seeking relief and why. A recent example: “After a bale of hay hit and injured Miriam White while she was operating her tractor, she sued the manufacturer, Deere & Company.” Ms. White’s appeal was summarily denied, but even the brief, three-page opinion reflects a serious engagement with her arguments and the facts—in contrast with the boilerplate language judges often use in such decisions. Win or lose, parties appearing before Judge Gorsuch surely know that they have been treated with fairness, consideration and respect. Read more »

When Is a Judge Not Really a Judge?

A dispute over whether the SEC can hear its own cases could lead to a shrinking administrative state.

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

Jan. 23, 2017 in the Wall Street Journal

An “alphabet soup” of federal agencies established since the 1930s have gradually supplanted the rule of Congress and the courts with the rule of supposed expertise. This accumulation of power is what James Madison identified in Federalist No. 47 as “the very definition of tyranny.” An example of this trend is the Securities and Exchange Commission’s increased use of in-house administrative law judges under the Obama administration.

Following high-profile losses in federal court—remember the insider trading charges against Mark Cuban?—the SEC decided to file fewer enforcement cases in courts presided over by independent judges. Instead, the agency began to take advantage of its in-house administrative law judges. Conveniently, a change in the Dodd-Frank Act authorized the agency’s judges to hear more kinds of cases and dispense more penalties.

Administrative law judges are agency employees. The proceedings they oversee provide fewer protections than court cases. They also tend to set stern deadlines and limit the right to factual investigation, often leaving defendants to rely on the SEC’s evidence. According to a 2015 Wall Street Journal analysis, the agency’s shift paid off: Through the beginning of that year, it won 90% of cases in its in-house court, compared with 69% of regular court cases. Administrative decisions can be appealed to court but are rarely reversed. That’s because the judges apply a deferential “clear error” standard to the agency’s factual findings. Read more »

Environmentalists’ fact-free case against Scott Pruitt

Pruitt’s record is one of defending the environment and attempting to get the EPA to operate within the law.

By David B. Rivkin Jr. and Andrew M. Grossman, in the National Review

January 18, 2017

Environmentalists know that they don’t like Scott Pruitt, the Oklahoma attorney general whom President-elect Donald Trump has tapped to lead the Environmental Protection Agency. But they don’t seem to know exactly why, based on the fact-free attacks being lobbed in his direction. Could it be that they’re simply mistaken?

Sure, Pruitt’s led the movement of states resisting the Obama-era EPA’s overreaches and challenging them in court. (In full disclosure, he brought us in to represent Oklahoma in its challenge to EPA carbon-emission rules.) But his point in those cases has always been that the EPA has to live within the limits of the law, including the constitutional prohibition on the federal government directing the states to do its bidding. So when EPA overstepped the line, Pruitt took it to court. A desire to see the agency follow the law isn’t exactly disqualifying for an EPA administrator.

It also doesn’t say much about how Pruitt regards the environment. He’s on record as arguing that conservatives should recognize the important role of the EPA in addressing pollution that flows across state lines, which is a uniquely federal problem. But that, he’s said, should be the EPA’s focus. Echoing the Clean Air Act itself, Pruitt’s view is that most pollution is the primary responsibility of states and local governments. Only they can understand and act on the trade-offs involved in environmental protection and have the flexibility to take into account local needs, rather than impose one-size-fits-all nationwide rules.

On that score, Pruitt has practiced what he preached. When Pruitt entered office in 2011, one of the most serious environmental problems facing Oklahoma was poultry runoff, mostly from Arkansas farms, fouling the waters of the Illinois River and Lake Tenkiller in the eastern part of the state. Oklahoma had brought a federal lawsuit against 14 poultry producers in 2005, and it took nearly five years for the case to be teed up for a decision, in 2010. Read more »