Problems at Federal Agencies

 Many posts have discussed federal employment and bureaucracy.

Thomas Frank at Politico:

President Donald Trump has rejected disaster aid for Democratic-run states at the highest rate in the 47-year history of the Federal Emergency Management Agency.

He approved just 23 percent of disaster funding requests from states with a Democratic governor and two Democratic senators since returning to office 14 months ago. For states with a Republican governor and two Republican senators, it’s the opposite — Trump has approved 89 percent of their requests.

There has never been such a sharp partisan disparity in the approval of federal disaster funds since FEMA was created in 1979, according to a review of 2,500 natural disaster declarations by POLITICO’s E&E News.

The denials have blocked Democratic-led states from getting a total of $250 million in disaster aid that would have been approved by every previous president including Trump in his first term, E&E News found.

Trump rejected most of the requests even after FEMA had documented that the damage met its financial threshold to warrant receiving federal aid.

 Sarah Fitzpatrick writes at The Atlantic about FBI Director Kash Patel:

Several officials told me that Patel’s drinking has been a recurring source of concern across the government. They said that he is known to drink to the point of obvious intoxication, in many cases at the private club Ned’s in Washington, D.C., while in the presence of White House and other administration staff. He is also known to drink to excess at the Poodle Room, in Las Vegas, where he frequently spends parts of his weekends. Early in his tenure, meetings and briefings had to be rescheduled for later in the day as a result of his alcohol-fueled nights, six current and former officials and others familiar with Patel’s schedule told me.

On multiple occasions in the past year, members of his security detail had difficulty waking Patel because he was seemingly intoxicated, according to information supplied to Justice Department and White House officials. A request for “breaching equipment”—normally used by SWAT and hostage-rescue teams to quickly gain entry into buildings—was made last year because Patel had been unreachable behind locked doors, according to multiple people familiar with the request.

Some of Patel’s colleagues at the FBI worry that his personal behavior has become a threat to public safety. An FBI director is expected to be available and focused on his job—especially when the nation is at war with a state sponsor of terrorism. Current and former officials told me that they have long worried about what would happen in the event of a domestic terrorist attack while Patel is in office, and they said that their apprehension has increased significantly in the weeks since Trump launched his military campaign against Iran. “That’s what keeps me up at night,” one official said

Trump II, First Year

Many posts have discussed the presidency.

 Ballotpedia:

Earlier this week marked the one year anniversary since Donald Trump (R) assumed office as the 47th president of the United States, making him one of only two U.S. presidents to serve two non-consecutive terms. Here’s a look at the first year of his second term, by the numbers, though Jan. 16.

Executive actions

Trump issued 229 executive orders, 57 presidential memoranda, and 118 proclamations in the first year of his second term. Trump’s executive order total was the highest first-year executive order total since Franklin Delano Roosevelt (D), who issued 568 executive orders in 1933.

Federal judges

Trump nominated, and the Senate confirmed 27 Article III federal judges, including 21 to U.S. District Courts and six to the U.S. Courts of Appeals. During the first year of his first term, Trump nominated, and the Senate confirmed 23 Article III judges, including one Supreme Court Justice, 12 to the U.S. Courts of Appeals, and 10 to the U.S. District Courts.

Supreme Court emergency applications

The Trump administration filed 32 emergency applications with the Supreme Court. An emergency application asks the Court for immediate intervention in a case that has not fully progressed through the ordinary procedures required for the Court to issue a regular opinion. The Court granted the Trump administration’s request for intervention in 21 cases.

Presidential pardons

Trump issued 181 presidential pardons and commutations, not including instances of mass pardons. According to the Department of Justice, during fiscal year 2017, Trump issued one pardon and no commutations. Joe Biden (D), Barack Obama (D), and George W. Bush (R) issued no pardons or commutations during their first fiscal year in office.

Tie-breaking votes in the Senate

Under Article I, Section 3, Clause 4 of the U.S. Constitution, the vice president also serves as the president of the Senate and may cast the deciding vote when there is a tie in the Senate. Vice President J.D. Vance (R) cast seven tie-breaking votes in the Senate.

Unilateral Power

Many posts have discussed presidential power.

Bruce Mehlman:

They say if you want to go fast, go alone. The Trump 2.0 White House has issued more executive orders in its first year than any Administration since FDR’s, recognizing that executive orders take effect instantly while court challenges to their legality take months. Likewise the great “unlock” for Presidential power is declaring emergencies, as Congress created special authorities for moments that demand quick and decisive action, such as 9-11, COVID or the Iranian hostage crisis. Courts usually defer to the Executive Branch on what constitutes an emergency, and T2.0 declared more first-year emergencies than the seven prior Administrations combined

.

Brief Against Tariffs

Many posts have dealt with tariffs and trade.

Senators Jeanne Shaheen and Ron Wyden, together with colleagues, filed an amicus brief against Trump tariffs: 

The Federal Circuit, Court of International Trade, and District Court for the District of Columbia all reached the same correct conclusion: the President’s imposition of tariffs under IEEPA is unlawful. 

Only Congress has the power to “lay and collect Taxes, Duties, Imposts and Excises,” U.S. Const. Art. I, § 8, cl. 1 and to “regulate Commerce with foreign Nations,” id., cl. 3. This reflects the Framers’ intent for the most democratically accountable branch—the one closest to the People—to be responsible for enacting taxes, duties, and tariffs. Hamilton, Federalist Nos. 31–36, The Same Subject Continued: Concerning the General Power of Taxation (Jan. 1788)

Congress enacted IEEPA, 50 U.S.C. §§ 1701–1710, to provide the President with the power to impose sanctions, export controls, and similar measures. It provides the President with defined powers to address national emergencies but does not confer the power to impose or remove tariffs.

Neither the word “duties” nor the word “tariffs” appears anywhere in IEEPA. Rather, IEEPA allows the President, in times of a declared emergency, to “regulate … importation or exportation” of property. 50 U.S.C.  § 1702(a)(1)(B). IEEPA’s delegated power to “regulate” is not a power to impose tariffs.

IEEPA contains none of the hallmarks of legislation delegating tariff power to the executive, such as limitations tied to specific products or countries, caps on the amount of tariff increases, procedural safeguards, public input, collaboration with Congress, or time limitations. In the five decades since IEEPA’s enactment, no President from either party, until now, has ever invoked IEEPA to impose tariffs.

The Administration’s interpretation of IEEPA would effectively nullify the guardrails set forth in every statute in which Congress expressly granted the President limited tariff authority—a result Congress did not intend.

Contrary to the views expressed by the Administration and the Federal Circuit dissent, IEEPA does not authorize the President to impose tariffs as “bargaining chips.” While this Court has held that Presidents may use IEEPA to freeze foreign assets and to then use those frozen assets as leverage in foreign affairs negotiations, Dames & Moore v. Regan, 453 U.S. 654, 673 (1981), IEEPA does not grant the President the power to impose tariffs on American citizens importing goods to generate leverage in trade talks. Nor may the President use IEEPA to override America’s trade statutes, which Congress has carefully considered and enacted over the years. The President “is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015)

This Court should hold that IEEPA does not delegate tariff authority to the President and the President’s tariffs under IEEPA are therefore unlawful.

Emergency Powers

 Bruce Mehlman:

Many laws give Presidents additional authorities to act in the event of national emergencies such as the 9/11 attacks, the Great Financial Crisis or COVID. There are no formal definitions of what qualifies as an “emergency,” and courts have shown wide latitude to Presidents in making that determination. The Trump Administration has declared more emergencies more often than any of its predecessors, citing nearly a dozen to justify & expedite executive action.

The Doomsday Book

 Miles Taylor at Vanity Fair:

Inside the White House complex, an instruction manual is hidden in a secure location for use only in national emergencies. Few people know where it is, and even fewer people are allowed to access it. Informally dubbed the “Doomsday Book,” the manual contains the president’s break-glass options for keeping the country running in situations ranging from global nuclear war to an armed foreign invasion of the United States.

The options are known by an anodyne name—PEADs—or “presidential emergency action documents.” Recently declassified records suggest that the PEADs allow the president to invoke extraordinary powers. The records hint at draft authorizations to enable the White House to unilaterally detain “dangerous persons,” censor the news media, flip an internet “kill switch,” take over social media, and suspend Americans from traveling. These might be the type of actions a president would take if the nation’s capital was destroyed, enemy forces were hunting down U.S. leaders, or the survival of U.S. democracy was in doubt.

Mark Harvey was once the keeper of the book. He served on the NSC during the Trump administration and referred to the manual as “the Mad Libs for the most extreme measures of government.” While Harvey wouldn’t confirm or deny the PEAD contents, his job was “to advise whether to pull out that book and go through these extraordinary decisions,” which he said could be implemented by the nation’s chief executive “with the stroke of a pen.” He was always on hair-trigger alert.

When Donald Trump was in office, senior aides like Harvey were concerned about protecting access to the PEAD documents. Inexperienced MAGA types roamed the White House halls daily, and NSC experts knew that, in the wrong hands, the special powers could be dangerous. Would someone suggest that Trump try to use the documents for non-emergency situations? Would they try to manufacture a crisis so that he could invoke presidential emergency actions?

Delay the Election?

Jacob Shelly at the Congressional Research Service:

Similar to its silence about presidential primary elections, the Constitution does not require a general election for President. While Representatives and Senators must be elected “by the People,” the Constitution provides that the President is chosen by electors appointed at the direction of each state’s legislature. Thus, while every state currently chooses its electors through popular election—where votes cast for presidential candidates are counted as votes for the electors pledged to those candidates—a state legislature could decide to select electors itself if it determined elections were infeasible. Indeed, it was common for legislatures to select electors without popular elections until the mid-1800s.

Whatever method a state chooses, the Constitution empowers Congress to set the date by which states must choose their electors. Since 1845, Congress has required states to appoint presidential electors on the Tuesday after the first Monday in November, which represents the date by which voters in every state must cast their ballot for President. However, the statute does contemplate that some states may not be able to comply with this deadline. By law, “[w]henever any State has held an election for the purpose of choosing electors,” but fails to “make a choice on the day prescribed by law,” the state legislature may establish the manner for appointing electors on a subsequent date. It is not clear whether Congress intended the same flexibility to occur where a state was unable to hold its scheduled election.

Unlike the practice of some states that allow the Governor to postpone an election during emergencies, neither the Constitution nor Congress provides any similar power to the President or other federal officials to change this date outside of Congress’s regular legislative process. Congress has enacted more than 100 statutes identifying special powers that the President may exercise during a national emergency, but none include the power to postpone or cancel any state’s chosen method of appointing presidential Electors. During previous episodes of war, pandemic, or other deadly crises in American history, the presidential election date has never been changed in response to an emergency.

The Constitution empowers Congress to determine the date the electors will cast their vote for President from their home states. Consistent with that authority, Congress has directed electors to submit their votes on “the first Monday after the second Wednesday in December.” Only Congress may change this date by Congressional Research Service 3 enacting a new statute. Anticipating that there may occasionally be delays, federal law instructs officials to send urgent requests to states that have not submitted their electors’ votes by the fourth Wednesday in December.

Congress has provided that the electors’ votes are to be tabulated on the sixth day of January, though occasionally it has chosen other dates in early January. To be elected President, a candidate must receive votes from a majority of the appointed electors. If no candidate receives this majority, whether because the vote is divided among multiple candidates or because a decisive number of electors were not able to submit their votes in time, the Twelfth Amendment requires the contest to be decided by the House of Representatives. Each state delegation casts one vote; members from at least two-thirds of the states must participate for there to be a quorum; and a winner must receive votes from a majority of all states.

The Constitution provides that each term for Members of Congress expires on the third day of January. Thus, in the event of a catastrophic emergency that prevented a significant number of states from transmitting the votes of electors and from holding congressional elections, there could be no body on the prescribed day of January 6th to choose the new President. In such a scenario, the duty could fall to the Senate. As a “continuing body,” two-thirds of the Senate’s members remain in office even if elections do not occur in a given year.

Under the Twelfth Amendment, the Senate may choose the Vice President-elect. If the House of Representatives is not able to choose a President, then the Vice President-elect assumes that office. Under the Twentieth Amendment, the incumbent President’s term ends at noon on January 20th. There are no provisions of law permitting a President to stay in office after this date, even in the event of a national emergency, short of the ratification of a new constitutional amendment. If none of the other avenues for selecting a new President have been successful, the vacancy would be filled according to the prescribed rules of succession. If there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall act as President. If there is no Speaker, or if the Speaker otherwise fails to qualify as Acting President, then the President pro tempore of the Senate shall act as President. 

Remote Voting in the House

At LegBranch.org, Joshua Huder acknowledges that the House might have to use remote voting in emergencies, but argues that it should not become routine.

Most proposals would limit remote voting to “noncontroversial” measures–basically, bills considered under “suspension of the rules,” a process requiring two-thirds passage (290 votes in the House). Many bills are noncontroversial. Congress renames a lot of post offices and regulates federal lands, among other bills of relatively minor significance. But even “noncontroversial” legislation can be a big deal. The “Doc-Fix,” which affected billions of dollars of healthcare spending, frequently passed under suspension of the rules. The second coronavirus assistance package, set to pass this week, is currently lined up on the suspension calendar. Suspension bills have retooled agencies’ prosecutorial authority, empowered inspectors general, and significantly changed how programs operate. Yes, the suspension calendar is primarily a vehicle for less controversial legislation, but not all non-controversial legislation is insignificant legislation.

Even worse, remote voting distances members from the policymaking process. Among the worst features of the current process is the gulf between rank-and-file members and the substance of legislating. Members are shut out of the floor amendment process. Leaders structure major agreements and present them take-it-or-leave-it packages. Omnibus legislation forces members to accept sometimes dozens of policy riders that would otherwise receive greater vetting if voted upon individually. Agencies receive less routine oversight and formal direction because regular but important reauthorizations fail to garner enough political or media attention. Agency spending bills escape scrutiny by passing en bloc rather than separately. If we want more individual member influence, putting distance between members and the process does the opposite. It gives leaders even more opportunity to legislate in secret, manipulate the process, and otherwise keep rank and file in the dark. For rank-and-file members to hold their congressional leaders accountable – whether committee chairs or party leaders – they need to, at a minimum, be physically present. “Remoting it in” has consequences.

Six Principles of Crisis and Emergency Communication

The Centers for Disease Control’s (CDC) Crisis andEmergency Risk Communication (CERC) manual:

1. Be First: Crises are time-sensitive. Communicating information quickly is crucial. For members of the public, the first source of information often becomes the preferred source. 
2. Be Right: Accuracy establishes credibility. Information can include what is known, what is not known, and what is being done to fill in the gaps. 
3. Be Credible: Honesty and truthfulness should not be compromised during crises. 
4. Express Empathy: Crises create harm, and the suffering should be acknowledged in words. Addressing what people are feeling, and the challenges they face, builds trust and rapport.
5. Promote Action: Giving people meaningful things to do calms anxiety, helps restore order, and promotes some sense of control. 
6. Show Respect: Respectful communication is particularly important when people feel vulnerable. Respectful communication promotes cooperation and rapport. 

Emergency Powers

L. Elaine Halchin at CRS:

The President of the United States has available certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations). Such powers may be stated explicitly or implied by the Constitution, assumed by the Chief Executive to be permissible constitutionally, or inferred from or specified by statute. Through legislation, Congress has made a great many delegations of authority in this regard over the past 230 years.

There are, however, limits and restraints upon the President in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority.

The National Emergencies Act (50 U.S.C. §§1601-1651) eliminated or modified some statutory grants of emergency authority, required the President to formally declare the existence of a national emergency and to specify what statutory authority activated by the declaration would be used, and provided Congress a means to countermand the President’s declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report.

In January, Kendall Heath reported at ABC: " According to the Federal Register, 58 national emergencies have been declared since the National Emergency Act of 1976 was signed into law by President Gerald Ford. And 31 have been annually renewed and are currently still in effect, as listed in the Federal Register."

International Emergency Economic Powers Act

From CRS:

The International Emergency Economic Powers Act (IEEPA) provides the President broad authority to regulate a variety of economic transactions following a declaration of national emergency. IEEPA, like the Trading with the Enemy Act (TWEA) from which it branched, sits at the center of the modern U.S. sanctions regime. Changes in the use of IEEPA powers since the act’s enactment in 1977 have caused some to question whether the statute’s oversight provisions are robust enough given the sweeping economic powers it confers upon the President upon declaration of a state of emergency.

Over the course of the twentieth century, Congress delegated increasing amounts of emergency power to the President by statute. The Trading with the Enemy Act was one such statute. Congress passed TWEA in 1917 to regulate international transactions with enemy powers following the U.S. entry into the First World War. Congress expanded the act during the 1930s to allow the President to declare a national emergency in times of peace and assume sweeping powers over both domestic and international transactions. Between 1945 and the early 1970s, TWEA became a critically important means to impose sanctions as part of U.S. Cold War strategy. Presidents used TWEA to block international financial transactions, seize U.S.-based assets held by foreign nationals, restrict exports, modify regulations to deter the hoarding of gold, limit foreign direct investment in U.S. companies, and impose tariffs on all imports into the United States.

Following committee investigations that discovered that the United States had been in a state of emergency for more than 40 years, Congress passed the National Emergencies Act (NEA) in 1976 and IEEPA in 1977. The pair of statutes placed new limits on presidential emergency powers. Both included reporting requirements to increase transparency and track costs, and the NEA required the President to annually assess and extend, if appropriate, the emergency. However, some experts argue that the renewal process has become pro forma. The NEA also afforded Congress the means to terminate a national emergency by adopting a concurrent resolution in each chamber. A decision by the Supreme Court, in a landmark immigration case, however, found the use of concurrent resolutions to terminate an executive action unconstitutional. Congress amended the statute to require a joint resolution, significantly increasing the difficulty of terminating an emergency.

Like TWEA, IEEPA has become an important means to impose economic-based sanctions since its enactment; like TWEA, Presidents have frequently used IEEPA to restrict a variety of international transactions; and like TWEA, the subjects of the
restrictions, the frequency of use, and the duration of emergencies have expanded over time. Initially, Presidents targeted foreign states or their governments. Over the years, however, presidential administrations have increasingly used IEEPA to target individuals, groups, and non-state actors such as terrorists and persons who engage in malicious cyber-enabled activities.

As of March 1, 2019, Presidents had declared 54 national emergencies invoking IEEPA, 29 of which are still ongoing. Typically, national emergencies invoking IEEPA last nearly a decade, although some have lasted significantly longer--the first state of emergency declared under the NEA and IEEPA, which was declared in response to the taking of U.S. embassy staff as hostages by Iran in 1979, may soon enter its fifth decade.

IEEPA grants sweeping powers to the President to control economic transactions. Despite these broad powers, Congress has never attempted to terminate a national emergency invoking IEEPA. Instead, Congress has directed the President on
numerous occasions to use IEEPA authorities to impose sanctions. Congress may want to consider whether IEEPA appropriately balances the need for swift action in a time of crisis with Congress’ duty to oversee executive action. Congress may also want to consider IEEPA’s role in implementing its influence in U.S. foreign policy and national security decisionmaking.

Emergency and Disaster

Because of Hurricane Irene, the president has issued several "emergency" declarations. What is the difference between an emergency declaration and a disaster declaration? The Congressional Research Service explains:

Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L. 93-288) there are two principal forms of presidential action to authorize federal supplemental assistance. Emergency declarations are made to protect property and public health and safety and to lessen or avert the threat of a major disaster or catastrophe. Emergency declarations are often made when a threat is recognized (such as the emergency declarations for Hurricane Katrina which were made prior to landfall) and are intended to supplement and coordinate local and state efforts prior to the event such as evacuations and protection of public assets. In contrast, a major disaster declaration is made as a result of the disaster or catastrophic event and constitutes a broader authority that helps states and local communities, as well as families and individuals, recover from the damage caused by the event. The differences between the two forms of declarations remain an area of study regarding what events may or may not qualify for the respective declarations.

The president will probably issue disaster declarations in the days ahead. The Federal Emergency Management Agency (FEMA) explains how federalism comes into play during a disaster:

The Stafford Act (§401) requires that: "All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State." A State also includes the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. The Marshall Islands and the Federated States of Micronesia are also eligible to request a declaration and receive assistance.

The Governor's request is made through the regional FEMA office. State and Federal officials conduct a preliminary damage assessment (PDA) to estimate the extent of the disaster and its impact on individuals and public facilities. This information is included in the Governor's request to show that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the local governments and that Federal assistance is necessary. Normally, the PDA is completed prior to the submission of the Governor's request. However, when an obviously severe or catastrophic event occurs, the Governor's request may be submitted prior to the PDA. Nonetheless, the Governor must still make the request.

...

Based on the Governor's request, the President may declare that a major disaster or emergency exists, thus activating an array of Federal programs to assist in the response and recovery effort. Learn more about evaluating a request for a major disaster declaration.

Not all programs, however, are activated for every disaster. The determination of which programs are activated is based on the needs found during damage assessment and any subsequent information that may be discovered.

Some declarations will provide only individual assistance or only public assistance. Hazard mitigation opportunities are assessed in most situations.

One Hurricane Irene has passed, cleanup will start. But what is cleanup, and who does it? The Congressional Research Service reports:

After a disaster, when a region turns its attention to rebuilding, one of the greatest challenges to moving forward may involve how to properly manage debris generated by the event. Options include typical methods of waste management—landfilling, recycling, or burning. The challenge after a major disaster (e.g., a building or bridge collapse, or a flood, hurricane, or earthquake) is in managing significantly greater amounts of debris often left in the wake of such an event.

Debris after a disaster may include waste soils and sediments, vegetation (trees, limbs, shrubs), municipal solid waste (common household garbage, personal belongings), construction and demolition debris (in some instances, entire residential structures and all their contents), vehicles (cars, trucks, boats), food waste, so-called white goods (refrigerators, freezers, air conditioners), and household hazardous waste (cleaning agents, pesticides, pool chemicals). Each type of waste may contain or be contaminated with certain toxic or hazardous constituents. In the short term, removal of debris is necessary to facilitate the recovery of a geographic area. In the long term, the methods by which these wastes are to be managed require proper consideration to ensure that their management (by landfilling, for example) will not pose future threats to human health or the environment.

After a presidentially declared disaster, federal funding or direct assistance in response to the disaster may be available to a state or local government. The Federal Emergency Management Agency (FEMA) may provide funding through its Public Assistance (PA) Grant Program for debris removal operations that eliminate immediate threats to lives, public health, and safety, or eliminate immediate threats of significant damage to improved public or private property. The federal share of funding to the affected area will be stated in the disaster declaration, but will be

no less than 75%. The funding will be available for response activities in a designated geographic area for a specific period of time.

In addition to funding, if the state or local government does not have the capability to respond to the disaster, it may request direct federal assistance from FEMA. Federal agencies most likely to assist with debris removal operations are the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA). Activities they may perform include right-of-way clearance, curbside waste pickup, private property debris removal, property demolition, assistance with contaminated debris management, and collection of household hazardous waste.