“The Problem with Informal Executive Action”

December 6th, 2016

On November 20, 2014–shortly before DAPA was announced–I appeared on the PBS News Hour to debate the constitutionality of the impending executive action on immigration. Here is the video. At 4:40, the late, great Gwen Ifill asked me a question about the implications of the policy:

GWEN IFILL: Is part of your concern that the people who will now be given this temporary protection will also be on a path to citizenship?

JOSH BLACKMAN: Well, I think the bigger issue is what this means for future presidents. So, if I can indulge for a second, imagine a President Ted Cruz decides not to enforce environmental laws or imagine if a President Rand Paul decides not to enforce a corporate income tax. The president’s ability to suspend the laws and not enforce them raises serious implications.

At the time, I was in a remote studio, and could not see Gwen, but I sensed a tension in her voice. A moment later, she asked Frank Sharry this pointed question:

GWEN IFILL: But Josh Blackman makes the point, what if it’s something you don’t agree with that the president decides to do?

He smirked, and dodged the question, calling it a “smokescreen.” As January 20 approaches, the smoke is quickly clearing.

For as long as I’ve been a law professor, I’ve written about the risk of executive overreach. Primarily, whatever precedents President Obama set to achieve progressive goals, the next President could then use advance conservative goals. This one-way-ratchet is the nature of the Presidency.  Now, on the dawn of the Trump Presidency, the chickens are coming home to roost.

Jameel Jaffer offered this evergreen observation:

During the Obama administration, too many Americans were willing to invest sweeping powers in the presidency because they trusted the president.  The modest, obvious, but nonetheless crucial point I make in my introduction is that this was a mistake.


A secondary risk 0f using executive action is that informal governance through what I called “government by blog post” can be easily undone. Policy memoranda from the Department of Homeland Security, like DACA or DAPA? Repealed in a second.  Payments to insurance companies not authorized by statute? Halted after the inauguration. “Dear Colleague” letters ordering schools to change longstanding interpretations of Title IX? Withdrawn quickly. So much of the Obama Presidency depended on an effective third term: the Affordable Care Act, Immigration, Clean Power Plan, Net Neutrality, etc. Between the formal regulations that can be disapproved through the Congressional Review Act, and the informal regulations that can be rescinded instantaneously, much of the President’s administrative legacy will be gutted in the first 100 days.

Far more sustainable are those regulations that went through the notice-and-comment process. To rescind these, agencies must engage in new rule-makings, which are subject to challenge by organizations. Courts can then scrutinize if the regulations are being adopted for valid reasons, or merely because the agency changed its mind. One such regulation that will not have such scrutiny is the Title IX “Dear Colleague” letter.

Jeannie Suk’s new column in the New Yorker, addresses “the problem with informal executive action” in the context of Gloucester County School Board v. GG.

President Obama’s mantra for the past year has been that Congress is broken, so the executive will act. And now, as the stage is set for the new executive, it is dawning on Democrats that living by that sword may mean dying by it. A President can unilaterally revoke prior Presidents’ unilateral actions, and we may soon see just that, in response to Obama’s moves on immigration, climate change, and gun control.

The tricky part is that many expect the expert agency’s views to change shortly after January 20th, when Trump’s O.C.R. is installed. (Dear Colleagues: Never mind, we take it back.) Come January, advocates of transgender rights, who have enthusiastically supported judicial deference to O.C.R., will have reason for an extreme pivot, given that the new O.C.R. is unlikely to view “sex” as an “internal sense of gender.” It is awkward now for Grimm’s lawyers to argue zealously for the notion that the agency knows best, when only weeks from now, and in coming years, that doctrine is more likely to harm than to help transgender students.

Suk acknowledges the risk of government-by-blog post as “lawmaking-by-letter.”

Anticipated as an opportunity for the Court to consider and perhaps vindicate transgender rights, Grimm’s case is instead poised to illustrate the fragility-in-strength of Obama’s lawmaking-by-letter. On the one hand, such letters have been a powerful tool of this Administration—and have been met by critics with complaints of executive overreach. On the other hand, the recent accomplishments may well be trampled in the changing of the guard: Trump’s O.C.R. can simply issue informal letters retracting prior positions on Title IX that were expressed in other informal letters.

What a bizarre position for defenders of “government by blog post.” One minute, they are celebrating judicial deference to agency letters. But if the Trump administration issues a new letter, they will have to argue that it is not entitled to deference. Why? Because Obama is better than Trump? Give me a break.

Suk quotes a candid Josh Block who acknowledges what I anticipated would be the winning strategy (even before the election): focus on the statute.

One of the lead attorneys, Joshua Block, of the American Civil Liberties Union, told me that the brief for Grimm to be filed in January will urge the Court to put aside the question of deference to the agency, because even without it transgender students’ right to use bathrooms matching their gender identity “is the only interpretation consistent with the statute,” Title IX. But to the extent that the Court does find ambiguity in the term “sex” in Title IX or the regulation, he said, he will advocate for deference to the Obama Administration’s interpretation.

All of this could have been avoided if the Obama administration had bothered to go through the notice-and-comment rulemaking process with respect to Title IX.

Had Obama’s O.C.R. employed the more onerous procedures, involving public notice and opportunity to comment, that are required to enact a proper legal regulation, its policy would be difficult to dislodge; the new Administration would have to invest in similarly costly and time-consuming procedures to get rid of it.

Why didn’t it? A combination of hubris and invincibility.  They truly believed that the letters were sufficient to bludgeon schools into compliance, and they didn’t think any court could ever stop them this way because schools wouldn’t risk losing funding. Gloucester County School Board called their bluff. Now, people who actually depend on these regulations (such as the ACLU’s client) are out of luck:

Block noted, “There’s no question that, as a practical matter, regulations protect people more than guidance does.” What’s more, this Administration’s method of threatening to enforce guidance documents as if they were rules is now laid out and ready-made for Trump’s Administration to deploy at will. The President-elect himself has not taken a clear position against transgender access to bathrooms, but his agencies may. One can only hope that his O.C.R. won’t go so far as to take the view that Title IX not only permits but requires schools to treat transgender students according to their sex assigned at birth.

Suk also addresses how the Court will handle a new “Dear Colleague” letter.

Even before the Supreme Court hears or decides Grimm’s case, Trump’s O.C.R. could issue a new interpretation concerning transgender students. The Court might see such a turnabout as reason to dismiss the case (which leaves the Fourth Circuit’s decision in favor of Grimm in place), or to send it back to the Fourth Circuit to consider in light of the change. But the Court would not have to take either of these actions. And the consequence of a dodge during this term is that the next time a transgender case gets to the Supreme Court, we would likely be talking about deference to Trump’s O.C.R., by a Court with at least one more conservative Justice on it.

This is a question I addressed after the election–will the Court (1) DIG, (2) Vacate and Remand, or go ahead and resolve question 3? Suk seems to suggest that the liberals on the Court will want to resolve this now, with 8 votes, rather than let the case arise in the future with a fifth conservative Justice. I’ll stick with my initial prediction that the Chief Justice pares back Auer deference (perhaps stressing the fungibility of these letters from one administration to the next) but rules on the statutory argument, like in King v. Burwell. Suk concludes with a similar prediction:

If the Court does go ahead and decide the case this term, then the conflicting Trump and Obama interpretations, so close in time, from the same agency, would likely convince the Court to treat O.C.R. as not having a consistent and considered view worthy of deference. Better yet, though, the Court should take the occasion to say that a mere letter, whatever its content, does not merit judicial deference, precisely because it bypasses the process of public input that we should want the executive branch to adopt in forming views on important policies. That point should resonate now more than ever.

If the Supreme Court finds the agency’s letters insufficient, that would leave the Justices to declare now what “on the basis of sex” means, which is really the best shot that transgender students have of securing a federal legal right to access bathrooms corresponding to their gender identity, perhaps for the foreseeable future. After all, we need to know the meaning of the key term, “sex,” in one of the most important civil-rights statutes in the country’s history. That is properly a question for the Supreme Court or Congress, not duelling letters from successive administrators.

I agree with everything except for the last sentence. This is a question for Congress to address–through ENDA or some similar statute–not through a dynamic interpretation of a four-decade old statute.

As a complete aside, I was in studio with Gwen and Judy Woodruff for a segment in 2015. They were so gracious and kind. What a tragic loss. Google photos created this hilarious GIF.