The Trump administration has taken steps and made claims that clash with legal opinions issued by a traditionally powerful agency that is part of the Justice Department, the Office of Legal Counsel.
The office has typically had an influential role in shaping internal government legal deliberations, and its court-like opinions are supposed to bind the executive branch unless the attorney general or the president overrides them or the office itself revokes them.
The disregard for its precedents is part of a broader pattern in which the clout and influence of the agency have eroded in the opening months of the administration.
Here are some examples that show that disconnect.
Spending
What the Trump administration has done
The Trump administration has frozen large amounts of spending authorized by Congress. It has justified those blocks with shifting legal rationales in court. But both President Trump and his White House budget chief, Russell T. Vought, have said that they believe the president has constitutional authority to refuse to spend taxpayer money that Congress appropriated for things the president does not like. That tactic is called impoundment, and Mr. Trump and Mr. Vought have said that they intend to re-establish that power despite a 1974 law that largely banned it.
What the Office of Legal Counsel has said
An opinion from 1969, written by William H. Rehnquist before he became chief justice, says the “existence of such a broad power is supported by neither reason nor precedent.” The office reinforced that conclusion in a 1988 opinion that says “the weight of authority is against such a broad power in the face of an express congressional directive to spend.”
Birthright Citizenship
What the Trump administration has done
Mr. Trump signed an executive order declaring that babies born on domestic soil to undocumented parents are no longer eligible for birthright citizenship and instructing government agencies not to issue them citizenship-affirming documents like Social Security cards.
What the Office of Legal Counsel has said
It would be unconstitutional to end birthright citizenship even if Congress approved making such a change through legislation, according to an opinion from 1995.
Asylum
What the Trump administration has done
Another of Mr. Trump’s executive orders barred noncitizens who crossed the southwestern border from seeking asylum, invoking a law, Section 212(f) of the Immigration and Nationality Act, that says a president can bar admission by a class of foreigners if he deems their entry detrimental to the interests of the country.
What the Office of Legal Counsel has said
A 1984 opinion says that the president cannot use Section 212(f) to take away the right of foreigners on U.S. soil to apply for asylum, even in the extreme case of some noncitizens who had hijacked a plane and forced it to fly them to the United States.
Arbitrary Firings
What the Trump administration has done
Mr. Trump has summarily fired several members of independent agency commissions before their terms were up. The removals have defied laws that say presidents cannot remove such officials without a good cause like misconduct and challenged a 1935 Supreme Court ruling upholding the power of Congress to enact such statutes.
What the Office of Legal Counsel has said
Mr. Trump’s position goes well beyond several recent opinions that discussed independent agencies.
A 2021 opinion says the president may fire the head of a particular agency led by a single official because that was in keeping with two recent Supreme Court decisions about similarly structured agencies. The opinion emphasizes, however, that the court’s rulings left open the possibility that other types of independent agencies “may constitutionally be led by officials protected from at-will removal by the president.”
A 2019 opinion says the president may direct independent agencies to submit regulatory plans to the White House for consultation, but it acknowledges that the Supreme Court has “upheld some statutory limits” Congress imposed on the president’s power to remove leaders of such agencies.
And a 2010 “best practices” memo for O.L.C. acknowledges the existence of independent agencies led by officials who do “not serve at the pleasure of the president.” That memo says that before the Office of Legal Counsel will answer legal questions posed by such agencies, they must first agree in writing to conform their conduct to its conclusions.
Autopen Signatures
What the Trump administration has done
In March, Mr. Trump declared that pardons issued by President Biden to some of Mr. Trump’s political adversaries were invalid because they were signed using an autopen.
What the Office of Legal Counsel has said
An opinion from 2005 concludes that presidents may legally sign official documents by directing their signatures to be affixed with an autopen.
The Smithsonian
What the Trump administration has done
Last month, Mr. Trump issued an executive order aimed at forcing the Smithsonian Institution to remove museum exhibitions that embody “a divisive, race-centered ideology” by portraying aspects of American history in a negative light.
What the Office of Legal Counsel has said
A 2008 opinion concludes that the institution is not legally part of the executive branch.
Content Source: www.nytimes.com