Category: Separation of Powers

  • DOJ/OLC Says Executive Privilege Covers Communication with Private Individuals

    The Department of Justice Office of Legal Counsel issued an opinion this week that the President’s executive privilege covers communications with private individuals, and not just certain government employees.

    The opinion represents an effort to expand the privilege beyond what any court has specifically held. I say “an effort” because the OLC memo itself doesn’t have any mandatory legal authority; it’s just the opinion of the office that advises the Executive Branch on legal questions. Still, OLC opinions can be persuasive in court.

    The opinion comes at an opportune time for President Trump: the Administration is in the middle of a dispute over the American Bar Association’s subpoenas for documents and testimony from Boris Epshteyn, a private individual, in the ABA’s case challenging the Administration on its crack-down on law firms. The Administration seeks to quash the subpoenas based on executive privilege. Moreover, the Administration may be laying groundwork for defenses against anticipated congressional inquiries and subpoenas, should the House (or Senate, or both) flip in the midterms.

    OLC wrote that the privilege applies to communications with private individuals for exactly the reason why it applies to certain government-employee presidential advisors: to allow the President to receive frank, open, and honest advice, without fear of later public disclosure, in order to “ensure that presidential decision-making is of the highest caliber, informed by honest advice and full knowledge.”

    OLC gave three qualifiers. First, the privilege only covers communications around official actions (but at the same time recognizing that those actions are quite broad and often entwined with apparently unofficial actions). Next, the privilege only applies “to communications with the President, or communications solicited and received by the President or his direct advisers.” Third, “the communication [must be] confidential at the time of its creation and . . . the President [must] continue to treat it as such.”

    Though the OLC memo doesn’t say much about how the privilege operates, remember that it’s a qualified privilege, not an absolute one. That means that a person or entity requesting information can overcome the privilege by demonstrating a sufficiently important need for the information. The OLC memo doesn’t attempt to change this, but it does say that invocation of the privilege “is rightly difficult to overcome.”

  • D.C. Circuit Declines to Halt Trump EO on Mail-In Voting

    The D.C. Circuit today affirmed a lower court’s refusal to halt the implementation of President Trump’s EO on mail-in voting. The ruling would allow the Administration to move forward with its implementation of the EO.

    But at the same time, the decision comes just days after the Second Circuit declined to stay a different lower court opinion that halted the implementation. The Administration asked the Supreme Court to intervene in that case just yesterday.

    Both cases test whether the issue is ripe for judicial review, given that the Administration hasn’t yet implemented the EO.

    The two cases leave the EO in limbo, at least in the plaintiff states in the Second Circuit.

    The cases test President Trump’s March 31, 2026, EO on mail-in voting. The plaintiffs in the cases argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.

    Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.

    The problem with the challenges, according to the Administration and the D.C. Circuit, is that the Administration hasn’t yet implemented the EO, and so we don’t know exactly how the Administration will implement it and exactly what harms it might cause. Without better information about implementation and harms, the reasoning goes, courts can’t judge its lawfulness.

    That said, the D.C. Circuit expressed some mixed feelings on the merits. On the one hand, it wrote that the “Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election.” (Emphasis in original.) On the other, it said,

    Given the Executive Order’s repeated commands for agency action to conform to the law, this court cannot assume that the agencies will impose such late-breaking disruption on the States’ conduct of the 2026 election.

  • Supreme Court Says FTC Can’t Be Independent

    The Supreme Court ruled today that Federal Trade Commissioners’ statutory independence violates the separation of powers.

    The ruling was not unexpected. It builds on a string of decisions out of the Roberts Court over the last couple decades or so.

    Still, the ruling will likely have dramatic impacts. The logic of the Court’s ruling likely means that dozens of independent federal agencies and offices, touching on all aspects of our daily lives, are unconstitutional, and that the President can remove incumbents at will (meaning: for purely political reasons). In other words: These agencies, designed by Congress to be politically independent, are now fully politicized.

    This is likely even more so under the current President, who has already endorsed and applied an extremely robust version of the unitary executive theory. UET says that the President, as unitary head of the Executive Branch, enjoys plenary authority over its officers, notwithstanding congressionally-designed independence in congressionally-created agencies. (Remember: Congress creates agencies through legislation; it vests them with authority; it funds them; and it oversees them.) Today’s ruling endorses a just-slightly-less robust version of UET. But we can expect that President Trump will use today’s ruling not only to politicize officers within the Executive Branch, but also to politicize civil-service employees, to restructure and dismantle federal agencies, and even to ignore law, including appropriations law, that applies to the Executive Branch. (We can reasonably anticipate this, because this is what he’s already done.)

    In other words, today’s ruling massively increases the President’s power, and massively reduces Congress’s. (It also increases the Court’s power, because, after all, it’s the one that issued the decision).

    But even as today’s ruling allows and invites President Trump to politicize offices and agencies, remember that it will also invite the next Democratic President to do the same. The net effect of the ruling, therefore, could be wild and economically-destabilizing swings in agencies’ enforcement priorities as different Presidents come in and out of office.

    The case, Trump v. Slaughter, arose when President Trump removed FTC Commissioner Rebecca Slaughter without providing a cause or reason. Slaughter claimed that this violated federal law, which says that the President can remove an FTC commissioner only “for inefficiency, neglect of duty, or malfeasance in office.” 15 U.S.C. Sec. 41. That statutory “for cause” removal protection is key to ensuring FTC independence, because it prohibits the President from removing an FTC commissioner at will, or for purely political reasons.

    The Court ruled that the “for cause” removal protection violated the separation of powers. In short, it said that by granting FTC commissioners for-cause removal protection, Congress impermissibly encroached on the power of the President, as unitary head of the Executive Branch, to direct the operations of the Executive Branch and, ultimately, to execute the law.

    The Court said that its ruling was narrow, applying only to the FTC, given the FTC’s significant executive authority under law. But the logic of the opinion almost surely sweeps in other independent agencies and offices, allowing the President to remove officers for purely political reasons. It will also invite the President to extend its reasoning to civil-service employees (who are protected by statutory civil-service laws), agencies themselves, and even the law of the Executive Branch.

    Along the way, the Court also overruled Humphrey’s Executor v. United States, the 1935 case that upheld the independence of the FTC against a similar separation-of-powers argument. That’s significant, because Humphrey’s Executor provided the precedent for multi-member agency independence. It (obviously) no longer does.

    Justice Gorsuch concurred, raising a concern that today’s ruling gives the President all the legislative and judicial powers that Congress has delegated to agencies over time. Justice Gorsuch’s concern is that Congress delegated those powers in the first place, not that the Court’s ruling gives the President sweeping power over previously independent agencies in their law-enforcement capacities.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. In short:

    Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong. The text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President. In holding otherwise, the Court gives the President a power unknown even to the English Crown against which the Founders revolted, elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws. . . .

    Perhaps worst of all . . . [t]oday’s majority . . . decides that it knows better: better than members of the founding generation who created agencies like the Sinking Fund Commission and the Bank of the United States, free from unfettered Presidential control; better than a century and a half of Congresses and Presidents, starting with Grover Cleveland and continuing into the 21st century, who created agencies in the FTC’s mold; better than even Hamilton, Story, Webster, Holmes, Brandeis, Frankfurter, and Rehnquist. . . .

  • Supreme Court Green-Lights Trump’s Hasty Termination of Temporary Protected Status

    The Supreme Court allowed the Trump Administration to proceed with its hasty termination of temporary protected status for Haitian and Syrians. The ruling means that hundreds of thousands of Haitians and Syrians may not lawfully remain in the United States. At the same time, they cannot safely return to their home countries, both of which the State Department itself says are too dangerous for travel.

    While the ruling is preliminary–allowing the Administration to terminate TPS while the case moves forward on the merits in the lower courts–the practical effect is to end protection for Haitians and Syrians, and to invite to the Administration to hastily end protection for others, too.

    The case, Mullin v. Doe, tested whether the Trump Administration’s termination of TPS for Haitians and Syrians violated federal law and equal protection. (TPS is a program that offers temporary and lawful refuge in the United States for nationals of countries where the conditions are unsafe. The Secretary of Homeland Security first designated Haiti for TPS in 2010, following a devastating earthquake. The Secretary first designated Syria in 2012 because of the brutal and repressive government there. Secretaries have since redesignated the countries based on their dangerous conditions.)

    Plaintiffs brought two claims. First, the plaintiffs argued that the Secretary failed to “consul[t] with appropriate agencies of the Government” and “determine whether the conditions for [TPS] designation . . . continue to be met,” as required by 8 U.S.C. Sec. 1254a(b)(3)(A). The plaintiffs said that a single cursory and perfunctory e-mail exchange between DHS and the State Department–in which State replied simply that there were no foreign policy concerns with terminating TPS for Haiti and Syria–didn’t cut it.

    Next, the Haitian plaintiffs argued that the Administration’s termination was motivated at least in part by race, in violation of equal protection.

    As to the lack-of-consultation claim, the Court ruled that a statutory bar on judicial review prevented the Court from weighing in. 8 U.S.C. Sec. 1254a(b)(5)(A) bars “judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state.” The Court said that “determination” includes not just the final decision to terminate, but also any decision to consult (or not) under Section 1254a(b)(3)(A). As a result, the Court said that courts lack jurisdiction to review the Secretary’s compliance with the consultation requirement (and, by extension, any other procedural requirement leading to the final decision).

    As to the equal protection claim, the Court held that the many racially-tinged statements by the President and the Secretary–the plaintiffs’ principal evidence of racial discrimination–weren’t “overtly racial” and could have merely reflected President Trump’s general opposition to immigration and his particular antipathy to the TPS program. Because these statements didn’t reflect a racial motivation to end protection, the decision didn’t violate equal protection.

    Justice Thomas concurred, arguing that the statutory ban on judicial review covered the plaintiffs’ equal-protection claim (in addition to their statutory failure-to-consult claim) and that in any event “aliens have no equal protection rights against the Federal Government.”

    Justice Kagan wrote a scathing dissent, joined by Justices Sotomayor and Jackson. She argued that the statutory ban on judicial review only applied to the Secretary’s final decision, and not to procedural steps leading to the decision, including the consultation requirement. She noted that the majority’s reasoning effectively strips the statute of its procedural requirements and invites the Administration to ignore them: “the majority’s holding makes everything in the statute precatory, including procedural requisites whose enforcement would seem to fall smack in the middle of the judicial wheelhouse.”

    As to equal protection, Justice Kagan argued that the President’s statements about Haitians reflect a clear racial motivation behind the decision to terminate:

    the Haitian plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. [She recounts them, page 11.] The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

  • District Court Blocks $100K Visa Fee

    Judge Leo T. Sorokin today ruled President Trump’s $100,000 fee for H-1B visas unlawful. The ruling vacates the fee in its entirety so that it’s null and void, absent a stay pending appeal.

    The ruling is a significant judicial rebuke of a central part of President Trump’s crack-down on immigration.

    The case, State of California v. Mullin, arose out of President Trump’s unilateral imposition of a $100,000 fee on new H-1B visas. Under the Immigration and Nationality Act, H-1B visas are temporary visas for non-immigrant foreign workers in specialty jobs. The INA authorizes the government to impose certain modest fees on H-1B visas, but these fees usually come to about $960 and $7500. The President’s new fee is obviously (and by design) a significant increase.

    The President pointed to authority for the fee under 8 U.S.C. Sec. 1182(f), the same provision that he used (and that the Supreme Court validated) to impose the travel ban in his first term. Trump v. Hawaii (2018). Section 1182(f) authorizes the President, upon certain findings, to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

    President Trump also pointed to an INA provision that makes it “unlawful . . . for any alien to . . . enter or attempt to . . . enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” 8 U.S.C. Sec. 1185(a)(1).

    Plaintiffs sued, arguing that President Trump’s proclamation establishing the fee violated the Administrative Procedure Act’s procedural requirements, that the fee exceeded the President’s statutory authority in violation of the APA, that the fee was arbitrary and capricious in violation of the APA, and that the fee was an unconstitutional ultra vires act in violation of the separation of powers.

    The court agreed with the plaintiffs on all counts. It ruled first that the fee amounted to a tax without authorization from Congress, and that it therefore impermissibly encroached on Congress’s power to tax. Drawing on the Supreme Court’s recent ruling in Learning Resources v. Trump (holding that President Trump’s tariffs were not supported by authority in the International Emergency Economic Powers Act), it held that the INA statutory provisions above do not delegate taxing power to the President. (The court held that it had authority to review the fee, because the plaintiffs challenged the executive agencies charged with enforcing the fee, not the President himself, and because the plaintiffs’ separation-of-powers claim was, indeed, constitutional, and not statutory. In a recent spate of rulings that give new life to Dalton v. Specter (1994), the D.C. Circuit has denied reviewability of certain claims against President Trump, concluding that they are based on statutes (that the President exceeded his statutory authority) and not on constitutional separation of powers. The court here distinguished Dalton.)

    The court next held that the government violated the APA. It ruled that the government violated the APA’s procedures by “issu[ing] a legislative rule without engaging in notice-and-comment rulemaking.” Next, it held that the government acted outside its statutory authority in violation of the APA. And finally it held that the fee was arbitrary and capricious in violation of the APA.

    Because the court ruled that the fee violated the APA, and because the APA authorizes courts to “set aside” unlawful agency actions, the court vacated the fee in its entirety. (The Supreme Court in Trump v. CASA, the first round of the birthright citizenship case, held that district courts lack authority to issue universal, or nationwide, injunctions. But at the same time, it recognized that the APA authorized district courts to “set aside” unlawful agency actions, and that a district court therefore had authority to vacate an agency rule in its entirety if in violated the APA, as here.)

  • The House Passed a War Powers Resolution. What’s the Constitutional Effect?

    The House yesterday passed a concurrent resolution directing President Trump to remove U.S. armed forces from hostilities with Iran. The measure was introduced by Representative Gregory Meeks (NY) and passed by a 215-208 vote.

    So what does the Constitution have to say about this?

    The action was a concurrent resolution pursuant to Section 5(c) of the War Powers Resolution, at 50 U.S.C. Sec. 1544(c). This provision says that when U.S. forces are engaged outside the United States “without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.”

    But a concurrent resolution passes with only the affirmative votes of the House and the Senate. It need not get the signature (or veto override) of the President, like ordinary legislation.

    As a result, there’s a broad understanding that Section 5(c) amounts to an unconstitutional legislative veto. This goes back to a 1983 Supreme Court case, INS v. Chadha, which held that legislative acts must pass both houses of Congress (bicameralism) and be signed by (or passed over the veto of) the President (presentment). (The Court in Chadha struck a law that allowed either house of Congress to override certain immigration decisions of the Attorney General. Because the override amounted to a legislative act, the Court said that it required bicameralism and presentment. And because it authorized one house of Congress to act alone, it violated those requirements.) Under Chadha, because Section 5(c) is a legislative act, and because it authorizes Congress to act without the President’s signature (or a veto override), it lacks presentment, and it is unconstitutional.

    In the wake of Chahda, Congress added a provision to the War Powers Resolution, 50 U.S.C. Sec. 1546a, that fast-tracks a congressional joint resolution to require the President to remove forces (that is, to do the same thing that Section 5(c) authorizes). The joint resolution, in contrast to the concurrent resolution, requires both houses to pass (bicameralism) and a signature (or veto override) of the President (presentment). A joint resolution therefore satisfies Chadha.

    But President Trump would surely veto a joint resolution. And Congress doesn’t have the votes to override. So a joint resolution compelling the President to remove forces stands no chance of becoming law.

    As a result, neither a concurrent resolution nor a joint resolution compelling the President to remove forces would become law. (Even if they could, there’s probably no legal enforcement mechanism. The courts almost certainly wouldn’t get involved, because such challenges are almost surely a non-justiciable “political question.”)

    But that doesn’t mean that yesterday’s action is meaningless.

    The House’s move to use a concurrent resolution sends a strong political signal to the President. Senate passage would make that signal even stronger.

    In addition to passing War Powers Resolutions (concurrent or joint), Congress has other ways to compel or pressure the President to remove forces. For one, it could withhold funding for the war, or for the military more generally, or for some other, unrelated presidential priority. (Like other legislation, however, this would require the President to sign the measure, or Congress to override a veto.) For another, it could refuse to confirm presidential nominees or refuse to pass legislation on presidential priorities, even in areas unrelated to the war. And for a third, it could engage in meaningful oversight. Among other things.

  • DOJ Scraps Trump Settlement Fund

    According to the NYT, Acting AG Todd Blanche just told Congress that DOJ was “not moving forward with the fund, period.”

    We posted on the history and litigation around the fund below.

  • A History of President Trump’s “Anti-Weaponization Fund” and Why it Matters

    Late last week, two federal courts dealt separate blows to President Trump’s efforts to establish an “Anti-Weaponization Fund,” a pot of federal money that President Trump could effectively pay out to his supporters with no meaningful oversight or check.

    In one case, the court temporarily halted the Fund’s implementation while the court considers a motion for a temporary restraining order. In the other case, the original case brought by President Trump, the court ordered the plaintiffs to brief whether the case was collusive from the get-go, justifying dismissal and potential sanctions against the attorneys. Those cases, and others challenging the Fund, are pending; we don’t have any definitive rulings yet.

    The episode is a case study in the attempted aggrandizement of presidential power at the expense of Congress and the courts. It comes in two steps. First, President Trump tried to play the courts by filing and “settling” a collusive lawsuit against an agency he supervises. Next, he tried to bypass Congress by unilaterally establishing a nearly $1.8 billion fund, with his own five-member board to control it.

    But federal courts don’t hear collusive lawsuits. Instead, Article III requires that parties be adverse. And in our system, the president can’t just establish a fund and a board to control it. Article I says that those powers belong to Congress.

    The courts and Congress, if they play their institutional roles in our checks-and-balances system, can reassert their powers by pushing back against this effort. The courts can reopen the original collusive case and scrutinize the parties’ behavior, and they can rule that the Fund violates the separation of powers, among other things. Congress, for its part, can enact legislation restricting the Fund or even eliminating it (subject, of course, to an admittedly unlikely presidential signature or a similarly unlikely veto override). It could also hold up other presidential priorities and even engage in meaningful oversight. But again: only if it’s willing to play its institutional role.

    In the meantime, to see how this unfolded, here’s a short history:

    The Lawsuit: January 2026

    In January 2026, President Trump, his sons, and the Trump organization sued the IRS and Treasury Department on the ground that a former government contractor improperly released Trump tax documents. The plaintiffs sought $10 billion in damages.

    The lawsuit was, er, unusual. For one, presidents don’t typically sue agencies that they supervise. President Trump acknowledged this himself shortly after he filed suit when he said, “I’m supposed to work out a settlement with myself.” For another, the $10 billion claim for damages seemed on the high side. For a third, the plaintiffs filed the suit outside the two-year statute of limitations for lawsuits challenging the unauthorized disclosure of tax returns.

    Outside parties raised these issues and others with the court. Department of Justice attorneys, who represent the government in court, did not even file an appearance in the case.

    The court, concerned that the lawsuit may have been collusive (and that it therefore might have lacked jurisdiction), ordered the parties to file briefs on the issue by May 20, 2026.

    Plaintiffs Voluntarily Dismiss the Case: May 18, 2026

    On May 18, two days before the court’s deadline to file briefs on the jurisdictional issue, the plaintiffs voluntarily dismissed the case. (Federal rules allow a plaintiff to voluntarily dismiss their case; and when they do, the case goes away.) The plaintiffs did not file a brief on the jurisdictional issue, and they did not attach a settlement agreement. As a result, the court did not rule on the jurisdictional issue, and it did not approve any settlement. Instead, it simply dismissed the case.

    DOJ Announces an Agreement: May 18, 2026

    Later that same day, DOJ announced that the parties reached an agreement: DOJ would establish a $1.776 billion “Anti-Weaponization Fund” “[t]o provide a systematic process to hear and redress claims” of “individuals, groups, and entities” who were “target[ed]” “by Democrat elected officials, political and career federal employees, contractors, and agents . . . for improper and unlawful political, personal, and/or ideological reasons.” Under the agreement, the Attorney General appoints five members to operate the fund. President Trump has authority to remove the members at will.

    Money for the fund comes from the DOJ Judgment Fund, a fund authorized by Congress that allows DOJ to settle lawsuits against the government under certain conditions and subject to certain restraints. It does not allow DOJ to siphon funds off to an “Anti-Weaponization Fund.”

    By design, the “Anti-Weaponization Fund” effectively allows President Trump to pay certain political supporters out of the government’s coffers, without meaningful checks or oversight. As many have pointed out, potential beneficiaries almost certainly include January 6 protestors.

    More Agreements: May 19, 2026

    DOJ later announced that the agreement also provides President Trump and the other plaintiffs with permanent protection against tax audits and prosecutions “before Defendants or other agencies and departments” that are “currently pending or that could be pending.”

    According to wide reporting, this could protect President Trump from a federal tax liability of $100 million or more. It’s also a highly unusual “settlement” term.

    Lawsuits: May 2026

    Various plaintiffs sued in several lawsuits to stop the Fund. Among other things, they argued that the Fund

    • violates the separation of powers, because Congress (the branch that has the powers to pass laws, create government agencies, and appropriate federal funds) did not authorize it;
    • conflicts with federal law and regulations, including DOJ’s regulations on the Judgment Fund and DOJ’s policy of prohibiting settlements that involve payments to third parties;
    • lacks connection to the alleged claims and damages in the original lawsuit;
    • violates the First and Fourteenth Amendments by discriminating among beneficiaries by viewpoint.

    Others have pointed out that the Fund violates Section 4 of the Fourteenth Amendment, insofar as it could pay January 6 protestors or others involved in the effort to overturn the 2020 presidential election. That section prohibits the United States from “assum[ing] or pay[ing] any debt or obligation incurred in aid of insurrection or rebellion against the United States . . . .”

    District Court Halts Fund: May 29, 2026

    Judge Leonie M. Brinkema (E.D. Va.) temporarily halted implementation of the Fund while the court considers a motion for a temporary restraining order in one of the cases challenging the Fund. Judge Brinkeman ordered the defendants to file a response to the plaintiffs’ motion by June 5, with any reply due by June 10. The hearing on the motion is set for June 12.

    Court Reopens Trump Case: May 29, 2026

    On the same day, Judge Kathleen M. Williams (S.D. Fl.), the judge in President Trump’s original case against the IRS and Treasury, ordered the case reopened in order to assess whether the case was collusive, whether “dismissal in [the] case was premised on deception by the Parties,” and whether “the Court was the ‘victim of a fraud.’” Judge Williams ordered the plaintiffs to file their briefs by June 12, 2026, and allowed a response brief by June 19.

    The order came in response to a friend-of-the-court motion to reopen the case filed by thirty-five former federal judges.