Tag: Presidential Power

Yes, Trump Has the Power to Shrink National Monuments

 

President Trump announced Monday that he will shrink the Bears Ears National Monument in Utah, declared only a year ago by President Obama, by 1 million acres (an 85 percent reduction). He also declared that he would shrink the Grand Staircase-Escalante monument by 800,000 acres (a 46 percent reduction).

Trump told a rally in Salt Lake City that he came to “reverse federal overreach” and took dramatic action “because some people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington. And guess what? They’re wrong.”

Regardless of the merits of reduction, it should be clear that President Trump has the authority to shrink or totally reverse the declaration of a national monument by a previous President. Presidents can designate national monuments under a delegation by Congress in the Antiquities Act of 1906. The Act does not address the process for reversing the designation, but neither do most statutes. Instead, we assume that a lawmaker uses the same process to undo a legal act — Congress passes a new statute to repeal an earlier law.

Richard Epstein explores the history of the president’s pardon power and examines whether former Maricopa County Sheriff Joe Arpaio was a worthy recipient of executive mercy.

Richard Epstein looks at the political and legal fallout from allegations that President Trump may have disclosed classified information to Russian diplomats, and that he may have had an improper conversation with then FBI Director Jim Comey.

The Libertarian Podcast: Epstein on the Supreme Court’s Jerusalem Decision

 

This week on The Libertarian podcast, Professor Epstein leads us through the intricacies of the Supreme Court’s ruling in Zivotofsky v. Kerry, a case nominally about which branch of the federal government gets to determine what’s printed inside your passport — but one that may have profound implications for the separation of powers when it comes to foreign affairs. It’s a typically comprehensive Epsteinian survey that touches on everything from the weaknesses of Justice Kennedy’s interpretive style to the propriety of signing statements. Listen in below or subscribe to The Libertarian via iTunes or your favorite podcast app.

Supreme Court Turns Minor Case Into a Potential Constitutional Conflict

 

shutterstock_141934102At first glance, yesterday’s Supreme Court decision in Zivotofsky v. Kerry — holding that Congress couldn’t force the executive branch to recognize Jerusalem as part of Israel on a passport — seems destined to end up as but a footnote in most constitutional law books. It only decides whether the president or Congress controls the content of U.S. passports. But because Zivotofsky involves the treatment of Jerusalem, it adds to the president’s foreign affairs arsenal and could affect the struggle over U.S. Middle East policy, such as an Iranian nuclear deal.

Zivotofsky upholds the executive’s right to control passports. According to the Court’s decision, the State Department, rather than Congress, decides whether to record the birthplace of a U.S. citizen born in Jerusalem as “Jerusalem,” rather than “Israel.” All of the justices agree that the president holds a monopoly on the recognition of foreign governments, which stems from his exclusive constitutional authority to “receive Ambassadors” and has existed since President Washington’s 1793 proclamation of neutrality during the French Revolution. Congress, on the other hand, has the authority to control immigration, the borders, and international travel. Justice Kennedy, who wrote the majority opinion on behalf of Justices Ginsburg, Breyer, Kagan, and Sotomayor, used an ill-conceived and undefined balancing test to conclude that Congress could not use these powers to contradict the president’s position on Israel’s territorial boundaries. A law using passports to contradict the president’s decision to recognize Israel “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”

It is refreshing to see Democratic-appointed Justices, some of whom criticized President Bush’s right to manage the War on Terror, take a stand in favor of the executive’s authority in foreign affairs (though don’t hold your breath for their embrace of a President Walker’s use of executive power). Their majority opinion, however, skims over the most critical point by mistaking the power over passports as belonging to Congress, rather than the executive. But even if Congress enjoys this power, Justice Kennedy fails to explain why it undermines the executive’s recognition of Israel. His reason — that Congress cannot force the Secretary of State to contradict the president — makes little sense. Regardless of the passport’s listing of birthplace, U.S. recognition of Israel remains unchanged. President Obama can still maintain his frosty relations with Benjamin Netanyahu and even threaten to support Arab and European persecution of Israel at the United Nations, all the while claiming to be Israel’s best friend before domestic audiences. Although Congress’s passport law may reveal that the Republican legislature is far more supportive of Israel than the president, this will only come as news to those who missed Netanyahu’s March address before Congress.

Re: Legal Questions on the Bergdahl Case

 

ObamaBerghdalPeter had a couple of questions yesterday in response to my post about the legality of the process by which President Obama brough Bowe Bergdahl back to the United States. First he asks:

If Congress required the President to report on any release of prisoners, and if, as appears to be the case, the President made no effort to do so, didn’t the President, um, break the law?

Yes, I think he violated a statute. And he did not have the Constitution on his side. The law here requires 30 days advance notice. If an operation requires stealth and speed, I think the President can have recourse to his Commander-in-Chief power. Even then, though, I would expect him to at least notify congressional leadership or the gang of eight, who have privileged access on intelligence matters. It doesn’t look like he did either here.