Not Just Kavanaugh: Democrats Obstructing Virtually All Trump Nominees

In order for our country to function, the executive branch must be able to appoint qualified nominees to critical positions. It appears, however, that Democrats have no interest in what is best for the effectiveness of our nation. They have one goal, obstruct President Trump at all costs. As Hans von Spakovsky and Thomas Jipping explain at Fox News,

More than a year and a half after the inauguration of Donald Trump’s presidency, the left continues to obstruct the confirmation of nominees to critical posts in both the executive and judicial branches. The unprecedented obstructionism denies leadership to executive branch departments and agencies and impedes the fair and swift administration of justice.

It is also an abuse of the Senate’s constitutional obligation to provide “Advice and Consent” regarding presidential nominations of judges and key “Officers of the United States.”

How bad has the obstruction gotten when compared to President Obama’s nominations?

As of July 17, the Senate had confirmed 515 presidential nominations. That may sound like a lot, but it’s nearly 30 percent less than the number confirmed at this point in President Barack Obama’s first term.

And it’s not that Trump hasn’t given the upper chamber plenty of nominations to act on. A whopping 371 nominations are now pending in the Senate, including 90 judicial nominees.  

Trump Judicial and Executive confirmations have not just slowed compared to Obama.

According to a one-page White House memo obtained by the Washington Examiner, each of the last four presidents had confirmed hundreds more judicial and executive nominees than Trump by the second July of their presidency. For instance, the Senate had confirmed 75 and 87 percent of former Presidents Barack Obama and Bill Clinton’s picks by this time in their term. They have confirmed just 58 percent for Trump.

Democrats have forced Republicans to dot every procedural I and cross every parliamentary T before getting their nominee a vote. As the New York Times reported last year, that means calling for a cloture vote which in turn requires an “intervening day” to allow the request, in parliamentary parlance, to "ripen." After that, the rules require 30-hours of “post-cloture” debate before a final vote.

This Democrat obstruction does not only hurt President Trump, it harms the country and the American people most importantly. Let’s hope the Democrats rethink this politically motivated tactic before too much damage is done.

ICYMI: Wash. Post: Democrats Delaying in Senate But Trump Still Very Successful with Appellate Nominees

Last Thursday, the Washington Post looked into the general misconception that President Trump is "rush[ing] to fill the courts" and the Senate is confirming judicial nominees at a record pace. The short answer is they are not--except for appellate judgeships. The article had three key takeaways:

Overall, [President] Trump isn't filling judgeships as fast as many think:

Trump may seem like the rabbit in this story — quick out of the gate. But that’s only compared to Obama’s slower pace. Below, we show the total number of federal judges confirmed by the Senate through the first 17 months of a president’s term in office. . . As of May 31, 2018, the GOP-led Senate had confirmed 39 of Trump’s judicial nominations, including one Supreme Court justice. This places him second to last compared to the number of confirmed judges at this point in the term for presidents dating back to Ronald Reagan in 1981-82; only Obama comes in behind him. . .  

But [President Trump is] doing well on appeals court judges:

Where Trump and Senate Republicans stand out is in confirming appellate court judges. The GOP Senate has confirmed 21 of Trump’s nominations for judges to the courts of appeals — far outstripping others presidents’ records at this point in their terms, dating back to Reagan. 

Some believe that this focus on the appellate courts is a Trump administration strategy because these courts have a more powerful effect on policy and legal change. The courts of appeals hear all appeals from the federal trial courts and the federal bureaucracy. They hold authority over large regions of the nation. Their cases, like almost all of the U.S. Supreme Court’s cases, deal exclusively with how to interpret federal laws, executive orders, bureaucratic regulations and rules and the Constitution. . .

The Senate is moving more slowly than in the past:

In 2013, the Democrats were in charge of the Senate — and banned filibusters of judicial nominations on the lower federal courts. That means today’s Republican Senate can confirm nominees with a simple majority vote. . . . Yet eliminating the filibuster has not appreciably sped up confirmation of federal judges. On average, it has taken almost 190 days for the Senate to confirm each of Trump’s appellate and trial court judges. That is appreciably longer than previous presidents’ records. . . .

Also note, administration nominees are also being relentlessly delayed and obstructed by Senate Democrats in a manner previously unseen, which is resulting in the cancellation of the Senate's August Recess (recently discussed here).

Despite Senate Democrat obstruction tactics (discussed at lengthed here) to delay many nominees, Chairman Grassley and Senate Majority Leader McConnell are keeping up the pressure and working get President Trump's qualified judges and administration nominees confirmed by the Senate. The RNLA thanks them for their hard, important work.

DOJ Backs Lawsuit Against UMichigan for Infringing on Free Speech

The stifling of speech on college campuses has become an issue at virtually every institution of higher learning across the country. On Monday, Attorney General Sessions and the Justice Department took a major step in the fight for preserving the First Amendment rights of college students everywhere. 

The Department of Justice today filed a Statement of Interest in Speech First, Inc., v. Schlissel in the Eastern District of Michigan. The plaintiff, Speech First, a nationwide organization dedicated to defending civil liberties, alleges that the University of Michigan has adopted policies prohibiting and punishing speech protected by the First and Fourteenth Amendments.  Speech First alleges that the University of Michigan’s policies on “harassment,” “bullying,” and “bias” are so vague and overbroad as to prompt students to limit their speech out of fear that they might be subject to disciplinary sanction, including “individual education” or “restorative justice” at the hands of the University’s Bias Response Team. 

The United States’ Statement of Interest argues that the University of Michigan’s Statement of Student Rights and Responsibilities, which prohibits “harassment,” “bullying,” and “bias,” is unconstitutional because it offers no clear, objective definitions of the violations.  Instead, the Statement refers students to a wide array of “examples of various interpretations that exist for the terms,” many of which depend on a listener’s subjective reaction to speech. 

According to the Plaintiff free speech organization Speech First, the speech policies of the University of Michigan make it far too easy for conservative speech to be silenced. Virtually any student could get another in trouble with the university through a claim of “harassment” or “bullying” just because they disagree with certain political opinions. Higher education should be a place that stimulates differing opinions and intellectual curiosity, not to place arbitrary limitations on certain viewpoints. Acting Associate Attorney General Jesse Panuccio shared this very sentiment in issuing the following statement:

“Freedom of speech and expression on the American campus are under attack. This Justice Department, under the leadership of Attorney General Jeff Sessions, is committed to promoting and defending Americans’ first freedom at public universities.”

The RNLA commends the Department of Justice’s fight to preserve our First Amendment rights at the University of Michigan and other colleges and universities across our nation.

Senate Democrat Obstruction: Canceled August Recess & Low Overall Confirmation Rate

Senate Majority Leader Mitch McConnell announced this afternoon the Senate's August recess has been cancelled due to the historic obstruction efforts from Senate Democrats. Leader McConnell's statement: 

Due to the historic obstruction by Senate Democrats of the president’s nominees, and the goal of passing appropriations bills prior to the end of the fiscal year, the August recess has been canceled. Senators should expect to remain in session in August to pass legislation, including appropriations bills, and to make additional progress on the president’s nominees.

Background: It is expected that Senators will have a state work period during the first full week in August before returning for the rest of the month. 

Earlier this week, on Saturday, June 2nd, President Trump said in his weekly address to the public that the Democratic resistance movement is “resisting the will of the American voter.” According the White House, when compared with recent presidents, President Trump has had the fewest nominees confirmed to date.

PolitiFact found that President Trump has also had the smallest percentage of nominees confirmed as of March 16th with only 57 percent of Trump’s nominees having been confirmed, below that of Presidents Barack Obama (67 percent), George W. Bush (78 percent), Bill Clinton and George H.W. Bush (each with 81 percent).

President Trump explained:

From day one, Senate Democrats have shamelessly obstructed, stalled, and filibustered the confirmations of hundreds of talented men and women who are eager to come to Washington, D.C. to make a difference. They want to serve our country.

My nominees face a longer average confirmation wait than any in the history of our country. Today, more than 300 of our nominees are still awaiting a vote.

Last June, I nominated Isabel Patelunas to serve as Assistant Secretary of the Treasury for Intelligence and Analysis. Now, almost a year later, this tremendously qualified professional with nearly three decades of intelligence experience is still awaiting confirmation. She’s given up so much. She’s left areas. She’s moved from homes and she’s still not confirmed. It’s a disgrace.

Senate Republicans are fighting back against this Democrat obstructionism, too. Chairman Chuck Grassley of the Senate Judiciary Committee stated on Friday the Senate should work into the August recess to help confirm judicial nominations. Chairman Grassley is also calling for ‘filibuster Fridays’ to speed up the confirmation process. Additional work days on Capitol Hill could help fill the vacant positions, but the true shame here is that the Democrat leadership is intent on playing partisan politics even if it harms the function of government and ultimately the American people.

President Trump has nominated many excellent nominees to lead our government and to become federal judges. The RNLA thanks Leader McConnell and Chairman Grassley for their leadership and initiative to confirm President Trump’s backlog of nominees pending before the Senate.

Three New Executive Orders Drain the Swamp

On Friday, May 25, President Trump continued to “drain the swamp” by signing three new Executive Orders designed to allow the swifter removal of underperforming government workers, ensure that taxpayer-funded union expenditures are subjected to higher accountability standards, and require a common-sense approach to collective bargaining in government employment. Given that over 2,100,000 people presently work for the federal government, the overhaul of discipline and union policies will enable substantial changes to the currently bloated, and often turgid, personnel bureaucracies throughout the system.

First, in a move that takes square aim against venal/incompetent/AWOL federal government workers, the new EO entitled “Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles” cuts the time it now takes to fire a chronically unfit employee from six months to a year – the current timeline in agencies that have a 120-day waiting period – down to a 30-day period for such workers to demonstrate improvement after being warned of deficiencies. For example, a Post Office employee fired both for using cocaine on her lunch break (which resulted in a felony conviction) and for bringing illegal drugs onto government property, was reinstated by the Merit Systems Protection Board after a mere 90-day suspension. In addition, layoff determinations will now emphasize quality of performance over seniority.

Second, in the EO entitled “Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining,” the President directs federal agencies to renegotiate their contracts with public sector unions to cut down on waste. For example, in some instances, the government pays expenses on both sides of a labor appeal, even though unions often have their own resources to pay for such work on the employee side. The government will also publish collective bargaining contracts online so that the American people can gauge for themselves the government’s efficiency at negotiating these agreements.  

Third, the EO entitled “Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use” curbs abuses of government-paid union activities. Presently, for example, some government workers – including one physician in a VA hospital – spend 100% of their time on union activities at government expense, while the government has to contract for additional labor to cover their job duties. Federal employees may now spend no more than 25% of their paid time on union activities, a change estimated to save some $100 million annually. The order also provides that government agencies charge rent to unions occupying federal government space.

In each case, the Executive Orders leave substantial flexibility for individual government agencies and departments to set rules that are appropriate for the agency, within the bounds of existing labor and civil service laws. Currently, it is extremely difficult to fire employees from the civil service, even after felony convictions. On the collective bargaining side, contracts currently may take years to be negotiated, and substantial waste is built into the system, coupled with a lack of transparency to the public both of the process of collective bargaining, and of its substantive effects.

Dr. Jeff T.H. Pon, Director of the U.S. Office of Personnel Management (“OPM”), hailed the new orders as promoting government efficiency and accountability: 

These Executive Orders are about protecting taxpayers’ dollars, including those of our dedicated federal employees, and putting those resources to use in the most efficient and effective way possible,” stated Director Pon.  “By holding poor performers accountable, reforming the use of taxpayer-funded union time, and focusing negotiations on issues that matter, we are advancing our efforts to elevate the federal workforce.  The vast majority of our employees are dedicated public servants who are dedicated to their missions and service to the American people.  It is essential that we honor their commitment, and these measures reflect just that.  Looking ahead, our focus will be on continuing to leverage technology to digitize our federal human resources infrastructure, build modern public human resources systems for the 21^st century, and celebrate the hardworking federal employees who serve our great Nation each and every day.

Supreme Court Vacancy Watch

Washington is abuzz with rumors of a possible upcoming Supreme Court vacancy. Many are trying to watch for clues and predict whether a vacancy is impending over the next several weeks. Traditionally, many judges and justices opt to retire at the end of a court's term, which for the U.S. Supreme Court occurs in last week of June.

This morning, The Hill published a story: "Kennedy retirement rumors shift into overdrive."

All eyes are on Justice Anthony Kennedy, 81, who reportedly considered calling it quits last spring. As the court’s current term winds to a close, speculation about his plans has again swept the capital, with court watchers searching for clues.

Those who say Kennedy is here to stay — at least for now — point to the fact that he’s already hired his law clerks for the next term, as Above the Law reported...“I don’t think he would have hired all four clerks for next year if he was seriously entertaining stepping down,” said Carl Tobias, a professor at the University of Richmond School of Law. “I just don’t think it’s going to happen.”

But Ian Samuel, a Climenko fellow and lecturer on law at Harvard Law School, who clerked for the late Justice Antonin Scalia, said the small number of cases the court has granted could signal Kennedy is throwing in the towel. The court has only agreed to hear 15 cases so far next term....“One possibility is they are not granting cases because they don’t know who their ninth member is going to be. … You could imagine Kennedy telling the chief, ‘I’d like to keep this between us, but I’d like to retire,’ and the chief saying, ‘Let’s see who Kennedy’s replacement is before we grant all these cases,’” Samuel said. . . 

Of course, this is like reading tea leaves.

But regardless of this, it is important to note that if another vacancy should occur during President Trump's term, President Trump and his Administration are ready. The President already has put out a revised list of twenty-five potential Supreme Court nominees, based upon the list he unveiled on the campaign trail in 2016.

While this version of the list was put out on November 17, 2017, it has been maintained and updated since then (i.e., Judge Stras was just confirmed by the Senate to the Eighth Circuit on January 30th, yet is up-to-date with current position below).

President Donald J. Trump’s Supreme Court List:

• Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit

• Keith Blackwell of Georgia, Supreme Court of Georgia

• Charles Canady of Florida, Supreme Court of Florida

• Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit

• Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit

• Britt Grant of Georgia, Supreme Court of Georgia

• Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit

• Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit

• Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit

• Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit

• Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit

• Mike Lee of Utah, United States Senator

• Thomas Lee of Utah, Supreme Court of Utah

• Edward Mansfield of Iowa, Supreme Court of Iowa

• Federico Moreno of Florida, U.S. District Court for the Southern District of Florida

• Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit

• William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit

• Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces

• David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit

• Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit

• Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit

• Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit

• Robert Young of Michigan, Supreme Court of Michigan (Ret.)

• Don Willett of Texas, Supreme Court of Texas [recently confirmed to the Fifth Circuit]

• Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

It is noteworthy that several on this list have recently had nominations and confirmation hearings before this Senate (within the last 18 months), including: Coney Barrett, Eid, Larsen, Newsom, Stras, and Thapar.

We will keep an eye on what could become the political battle of the year. Should this occur, the RNLA will be one of the leading sources for all things Supreme Court and judicial nominations.

Despite Liberals' Fear Mongering, Accurate Census Has 90% Support

While Drudge Report and other places are reporting President Trump’s 50% approval rating, there is another number that many have missed that is much higher.  In another poll by Rasmussen nearly 90% approve of an accurate census and 66% approve of asking a person’s citizenship as part of the decennial census of 2020:

A new Rasmussen Reports national telephone and online survey finds that 89% of American Adults agree it’s at least somewhat important for the government to get as accurate a count of the U.S. population as possible in the U.S. Census, including 69% who say it’s Very Important.

This is yet another sign that inclusion of a citizenship question in the census should not be controversial.  Yet, it remains controversial to Democrat and liberal political operatives.  Their concerns are about disclosure of such information to agencies such as Immigration and Customs Enforcement (ICE).  However this is the really fear mongering as there are laws in place to protect this, as Politifact details (emphasis in original):

Can Census citizenship information be shared with other government agencies, including ICE?

A "72-Year Rule" prevents the public disclosure of personally identifiable information to any other individual or agency until 72 years after its collection.

An accurate census is required by the Constitution and important for many government activities.  The vast majority of Americans agree that asking about citizenship should be part of the census.  

Schumer: "Opposing" Those HE Supports to Undermine the Government

The Senate recessed today for two weeks and most people are focusing on the Omnibus. The government funding issue is important but so are the people who work for the government. Using obstruction tactics in unprecedented fashion, Democrats have fought against confirming Trump appointees to run the government. As Politifact recently reported:

Compared with recent presidents, Trump has had the fewest nominees confirmed to date, according to the White House.

Trump has also had the smallest percent of nominees confirmed by the Senate at this point in his presidency, relative to recent predecessors. Only 57 percent of Trump’s nominees have been confirmed, below that of Presidents Barack Obama (67 percent), George W. Bush (78 percent), Bill Clinton and George H.W. Bush (each with 81 percent).

Polifact tries to muddy the water a bit by saying that this is somehow also Republicans fault for what they did in the last years of Obama.  Whatever the Republicans allegedly did does not compare to what is happening now.  Politifact misses the "why fact."  Democrats are using dilatory, delaying tactics (emphasis ours):

“At this point, in the past four administrations combined -- the last four administrations -- the Senate had conducted 17 cloture votes combined - cloture vote, in essence, being a filibuster on a nominee. Seventeen cloture votes in the last four administrations combined, at this point,” [White House Legislative Director Marc] Short said.

“Today, the Senate has had 79 cloture votes in the first 14 months of our administration. Seventeen, over the last four administrations, versus 79 in the first 14 months of our administration. That is roughly five times the number of the last four administrations combined,” Short said.

He accused Sen. Chuck Schumer (D-N.Y.) of “weaponizing a Senate procedure and demanding cloture votes on our nominees that he even eventually supports.”  

The last point is important.  Schumer is not even trying to defeat nominees, he is just trying to prevent more of Trump’s nominees from being confirmed by wasting time. Each cloture vote wastes 30 hours of Senate floor time. This is not just the White House or even the more fiery Republican Senators who are upset. The respected, low-key, and long serving Senator Pat Roberts of Kansas put it this way:

“Thirty hours is just too much. You have cloture motion filed on a nominee and the nominee gets 98 votes and then you wait 30 hours for nothing else but to slow the process down,” said Sen. Pat Roberts (R-Kan.)

Shame on Senate Minority Leader Schumer and Senate Democrats for trying to undermine the government by preventing more of President Trump's nominees be confirmed.  They are undermining the government, just the same as if they did not vote to fund it.  

Senator Hatch: Unprecedented Judicial Vacancy Crisis

On March 20, Senator Orrin Hatch, the president pro tempore of the Senate, delivered an impassioned speech about the current state of federal judicial vacancies under President Trump.

Due to Senate Democrats' continued obstruction and efforts to "resist" President Trump and his agenda (as we have highlighted regularly), there are currently 138 federal district and appellate court vacancies. Senator Hatch clearly and concisely explains this crisis and how things compare today to days' past under other, recent Presidents.

First, Senator Hatch looked to recent, past "standards" exalted by Senate Democrats before President Trump took office, to point out the hypocrisy and outright obstructionism [1:20-minute mark]:

One standard is that the Democrats have specifically identified how many vacancies are unacceptable. In February 2000, with a Democrat in the White House, the Democrats said that 79 vacancies were ‘‘too high.’’ In September 2012, with the Democrats both in the White House and controlling the Senate, they declared a ‘‘judicial vacancy crisis’’ when there were 78 vacancies. If 78 vacancies is a crisis, what is the label for 138 vacancies? . . .

A second Democratic vacancy standard is that, as they did in April 2014, we can compare judicial vacancies today with vacancies at the same point under previous Presidents. If that Democratic standard is valid, vacancies today are 35 percent higher than at this point under President Obama and 46 percent higher than at this point under President George W. Bush.

There is a third Democratic vacancy standard. In June 2013 and at least as far back as April 1999, the Democrats have complained that the Senate was not confirming enough judicial nominees to keep up with normal attrition. Well, judicial vacancies today are 30 percent higher than when President Trump took office, and, as I said, at least 33 more have already been announced.

Finally, the Democrats have frequently said that the 107th Congress—the first 2 years of the George W. Bush administration—should be our judicial confirmation benchmark. During that time, the Senate confirmed an average of just over 4 judicial nominees per month. The Senate has so far confirmed 28 of President Trump’s district and appeals court nominees or fewer than 2 per month.

Take your pick. By any or all of these Democratic standards, we face a much more serious judicial vacancy crisis than in years past. . . .

Next, Senator Hatch explained the reality of this situation and how Republicans have tried to get President Trump's judicial nominees to the Senate Floor for a vote and how Democrats have pulled all stops in an attempt to slow the process down to a crawl [5:34-minute mark]:

Under Chairman Chuck Grassley's leadership, the committee has held a hearing for 62 of President Trump’s judicial nominees—more than under any of the previous five Presidents at this point. So that is clearly not the problem. The first sign of Democratic obstruction is the unwarranted and partisan opposition to reporting judicial nominations from the Judiciary Committee.

In February 2012, 3 years into the Obama administration, the Democrats complained that five nominees to the U.S. district court had been reported by the Judiciary Committee on a party-line vote. This, they said, departed dramatically from Senate tradition. Today, just 14 months into the Trump administration, eight nominees to the U.S. district court have been reported by the Judiciary Committee on a party-line vote. The present rate of such party-line votes in the Judiciary Committee is more than four times what the Democrats criticized just a few years ago.

The below-the-radar obstruction tactics continue when the Judiciary Committee sends judicial nominees to the full Senate. The Democrats, for example, refuse to cooperate in scheduling confirmation votes. They can’t prevent confirmation votes altogether because they abolished nomination filibusters in 2013, but if they can’t make judicial confirmations impossible, they are determined to make them very difficult. Here is how they do it.

Since President Trump took office, the Democrats have forced the Senate to take 28 cloture votes on judicial nominations, compared to just 2 cloture votes at this point under the previous five Presidents combined. Even when cloture is invoked, Senate rules provide for up to 30 hours of debate before a confirmation vote can occur. Nearly half the time under President Obama, a judicial nomination cloture vote was followed by a confirmation vote on the same day. Under President Trump, that has plummeted to 17 percent. The average time between cloture and confirmation votes for President Trump’s judicial nominations is more than 55 percent longer than it was under President Obama. . . .

Senator Hatch concludes [13:00-minute mark]:

We face an unprecedented judicial vacancy crisis. Since President Trump is making nominations and the Judiciary Committee, under Chairman Grassley's leadership, is steadily processing them, there remains only one explanation for the vacancy crisis we face today—plain, old-fashioned, partisan obstruction. The Democrats are manipulating this process at every stage, using the very tactics that they have loudly condemned in the past to make confirmations as difficult and time-consuming as possible.

Even in politics, actions speak louder than words. In July 2012, when there were 76 judicial vacancies, Chairman Leahy said that ‘‘we should be doing better.’’ Today, with nearly twice as many vacancies, I challenge my Democratic colleagues to put actions to those words.

You can view Senator Hatch's entire Senate Floor speech on YouTube and a transcript of his remarks have been published in March 20's Congressional Record (on the first two pages).

The RNLA will continue to highlight this ongoing, unprecedented crisis faced by President Trump's judicial and political nominees.

DOJ Announces New Cybersecurity Task Force

Yesterday, Attorney General Jeff Sessions announced the creation of a new cybersecurity task force at the Department of Justice:

Attorney General Jeff Sessions has ordered the creation of the Justice Department’s Cyber-Digital Task Force, which will canvass the many ways that the Department is combatting the global cyber threat, and will also identify how federal law enforcement can more effectively accomplish its mission in this vital and evolving area. 

“The Internet has given us amazing new tools that help us work, communicate, and participate in our economy, but these tools can also be exploited by criminals, terrorists, and enemy governments,” Attorney General Sessions said.  “At the Department of Justice, we take these threats seriously.  That is why today I am ordering the creation of a Cyber-Digital Task Force to advise me on the most effective ways that this Department can confront these threats and keep the American people safe.” 

The Task Force will be chaired by a senior Department official appointed by the Deputy Attorney General [Rod Rosenstein] and will consist of representatives from the Department’s Criminal Division, the National Security Division, the United States Attorney’s Office community, the Office of Legal Policy, the Office of Privacy and Civil Liberties, the Office of the Chief Information Officer, the ATF, FBI, DEA, and the U.S. Marshals Service. . . . The Task Force will be responsible for issuing a report to the Attorney General by the end of June.  

The Attorney General has asked the Task Force to prioritize its study of efforts to interfere with our elections; efforts to interfere with our critical infrastructure; the use of the Internet to spread violent ideologies and to recruit followers; the mass theft of corporate, governmental, and private information; the use of technology to avoid or frustrate law enforcement; and the mass exploitation of computers and other digital devices to attack American citizens and businesses.  The scope of the Task Force’s report is not limited to these categories.

Attorney General Sessions realizes that, despite the media attention on alleged Russian meddling in the 2016 election (and indeed, almost every story on this task force has a headline about its study of efforts to interfere with our elections), the cybersecurity threat America faces from bad actors is much broader.  As he says in the memorandum creating the task force, after noting the pervasiveness of technology in the modern world:

Indeed, the scale of this cyber threat, and the range of actors that use cyber attacks and intrusions to achieve their objectives, have grown in alarming ways. . . . Most of the pressing cyber threats that our nation faces transcend easy categorization.  

We look forward to seeing this task force's report.  Unlike many efforts championed by the liberals to respond to allegations of Russian interference in the 2016 election, it will provide guidance and potential solutions that are helpful to state and local election officials without usurping their important role in election administration, will complement the important cybersecurity work being done by election officials, will not create a new permanent federal bureaucracy, and will not limit law-abiding Americans' rights on the Internet.   

ICYMI - AAG Rachel Brand on DOJ Response to War on Free Speech on College Campuses

Associate Attorney General Rachel Brand wrote last month about the ways that college campuses are suppressing free speech and what the Trump-Sessions Department of Justice is doing to protect students' First Amendment rights:

These restrictions take a variety of forms.  For example, speech codes at many colleges ban speech that is “offensive,” a subjective standard that allows college administrators to arbitrarily ban speech they find disagreeable. For example, Georgia Gwinnett College stopped a student from speaking about his religious faith because it “disturbed the comfort of persons” – even after he had gotten a permit from the school to speak. 

Other schools claim they allow free speech but impose so many rules and procedures that it is almost impossible for speakers to reach an audience. Pierce College in Los Angeles, for example, limited students’ “free speech” to a space the size of a couple parking spots and required a permit to speak even there.  At a community college in Michigan, a student was arrested and jailed for handing out copies of the U.S. Constitution because they didn’t have a permit.

Ms. Brand gives other examples of how colleges suppress speech or enable third parties to suppress students' speech.  Then she turns to what the DOJ is doing to protect free speech rights:

The U.S. Department of Justice is not standing on the sidelines while public universities violate students’ constitutional rights – we are backing free speech lawsuits against universities that violate the First Amendment.  Thursday, we are filing a brief supporting a group of Berkeley University students who allege that the University’s policy imposing stricter rules on controversial speakers violates the First Amendment.  This is the third suit in which we have filed such a brief, and it will not be the last. 

Defending the fundamental constitutional rights of all Americans is a core part of the Department’s mission, and defending free speech rights is particularly important.  Free speech is not only a fundamental right, but, as James Madison said, the “effectual guardian of every other right.”  Free speech enables citizens to advocate for all their other civil rights and is the single most powerful bulwark against government tyranny. This is perhaps why our Founders protected it in the very first amendment in our Bill of Rights.  It is also why the Department of Justice is working so hard to protect it - free speech is too important for the Department of Justice not to speak on its behalf.  

As Ms. Brand notes, it is ironic and sad that colleges and universities, where students should be exposed to and challenged by a broad range of ideas as they hone their thinking and skills, are where free speech rights are being systematically suppressed by liberal college administrators.  We are grateful to the Trump-Sessions DOJ for recognizing and addressing this serious threat to students' constitutional rights.

Trump DOJ Righting Wrongs of Viewpoint Discrimination by Obama's IRS

The Trump Department of Justice under Attorney General Jeff Sessions continues to restore the rule of law and undo years of politicization of DOJ, and the entire Executive Branch, that occurred under President Obama.  For example, consider last week's settlement with Z Street, one of the many organizations in which the IRS engaged in viewpoint discrimination when evaluating its application for recognition of tax exempt status.  Z Street's challenge to the IRS' discrimination was the first "IRS scandal" case filed, back in August 2010.  

The head of the DOJ's Tax Division and RNLA member Richard Zuckerman stated:

“Tax exemption eligibility should be based on whether an organization’s activities fulfill requirements of the law, not a group’s policy positions or the name chosen to reflect those views,” said Principal Deputy Assistant Attorney General Zuckerman. “The attorneys at the Department of Justice work hard to ensure that all Americans receive equal treatment under the law.  Today’s settlement further illustrates this commitment.”

This is a remarkably refreshing view from DOJ, respecting the rule of law instead of liberal policy objectives.  The Founder of Z Street, which seeks to educate Americans about issues relating to Israel and the Middle East, wrote a disturbing account in the Wall Street Journal regarding her organization's discriminatory treatment by the Obama IRS:

[T]he application [filed in December 2009] languished. In late July 2010, an IRS agent truthfully responded to our lawyer’s query about why processing was taking so long: Z Street’s application was getting special scrutiny, the agent said, because it was related to Israel. Some applications for tax-exempt status were being sent to a special office in Washington for review of whether the applicants’ policy positions conflicted with those of the Obama administration. . . .

Now we know the truth, and it’s exactly as bad as we thought. IRS documents—those they didn’t “lose” or otherwise fail to produce—reveal the following:
• Our application was flagged because Z Street’s mission related to Israel, a country with terrorism. Therefore, an IRS manager in our case said in sworn testimony, the IRS needed to investigate whether Z Street was funding terror.
• Some applications for tax-exempt status were indeed being sent to IRS headquarters in Washington for more intense scrutiny. They were selected because of the applicants’ viewpoint.
• In August 2010, three other Jewish organizations applying for tax-exempt status were asked by the IRS to “explain their religious beliefs about the Land of Israel.” 

Our own investigation disclosed that between 2009 and 2016, while Z Street’s application was stalled, the IRS needed no special scrutiny to grant numerous applications for tax-exempt status that explicitly proclaimed donations would be spent in Gaza—a territory formally under the jurisdiction of Hamas, which the U.S. State Department designates as a terror organization. 

While claiming to be investigating Z Street’s funding of terror, the IRS never asked how or where Z Street spent its money. The IRS ultimately granted Z Street’s application, in October 2016, without asking anything about terror, or money, or anything else it hadn’t known in 2010.

Lori Lowenthal Marcus went on to explain how the Obama Administration's unofficial policy positions on Israel influenced her organization's treatment by the IRS, even though it only sought to educate Americans and spend its funds in America, and the immense damage wrought to her fledging organization by the IRS' seven years of delay.  The proposed consent order contains more details about the IRS' treatment of Z Street.

While Z Street and the other organizations against which the IRS discriminated because their viewpoints differed from the Obama Administration's can never have the lost years of fundraising, activity, and advocacy back, we are grateful that the Trump-Sessions DOJ is taking steps to recognize the wrongs committed by the IRS, end the interminable litigation, and let these non-profits move on to focus on their missions.

Democrats #Resist America During State of the Union

Last night, President Trump delivered his first State of the Union address.  It was a strong speech, focusing on his Administration's accomplishments in the first year and his policy goals to continue making American great again.  As many commentators have noticed, in contrast to President Obama's State of the Union speeches, President Trump focused on "we" instead of "I" and on the greatness of America and the American people.

Of the many first-year accomplishments that President Trump noted, a few are especially noteworthy from a legal perspective (additions to prepared remarks from the delivered speech noted in brackets):

For the last year we have sought to restore the bonds of trust between our citizens and their Government. 

Working with the Senate, we are appointing judges who will interpret the Constitution as written, including a great new Supreme Court Justice, and more circuit court judges than any new administration in the history of our country. 

We are [totally] defending our Second Amendment, and have taken historic actions to protect religious liberty. . . . 

In our drive to make Washington accountable, we have eliminated more regulations in our first year than any administration in [the] history [of our country].

Also notable last night was the sheer recalcitrance of the Democrats.  It is common for the opposing party at State of the Union addresses not to applaud or rise for the President's policy proposals.  But the number of normally non-partisan things for which the Democrats (with a few exceptions) did not applaud or stand is astounding:

• Record-low African-American and Hispanic unemployment (the silence from the Congressional Black Caucus was deafening)
• Infrastructure spending (a perennial Democratic policy proposal)
• Veterans
• The strength of the American people
• Rising wages and prosperity
• Return of jobs to America
• Approval of life-saving medications and treatments (a.k.a. "right to try")
• The entrance and introduction of the President
• The National Anthem
• "In God We Trust" (the official motto of the U.S. by statute)
• Not telling America's enemies our plans and giving aid to allies and not enemies

See here and here.  As Fox News reported, there were a couple exceptions to the scowls from the Democrats: 

Members during the address chose not to stand when Trump honored Louisiana Republican Rep. Steve Scalise and praised his resolve for returning to work less than four months after he “took a bullet” from a gunman and "almost died.” 

And they chose not join in the applause for a 12-year-old boy in the gallery whom Trump praised for putting flags on soldiers’ graves on Veterans Day. 

“Democrats are no longer just the party of resistance and obstruction, they are now also the party of sitting on their hands,” said the Republican National Committee. “No matter the issue, Democrats chose to sit on their hands tonight.” 

There were three notable exceptions among Democrat senators. Joe Manchin, D-W.Va., Joe Donnelly, D-Ind., and Heidi Heitkamp, D-N.D., all red state Democrats facing tough re-election bids in November, stood and applauded multiple times.

Today, Sen. Manchin called out his Democratic colleagues for being "disrespectful," though Sen. Manchin also felt the peer pressure not to applaud or stand at times as well.

So while President Trump delivered a strong speech, highlighting and praising American values and the American people, the Democrats continued their resistance to such an extent that they would not even recognize those shared American values and the value of the American people.  As the President would say, SAD!

AG Sessions Restoring the Rule of Law at DOJ

Carrie Severino wrote a lengthy summary of what Attorney General Jeff Sessions has done to restore the rule of law at the Department of Justice in less than a year:

Since Attorney General Jeff Sessions was confirmed to head the Department of Justice (DOJ) nearly one year ago, he has been making an impact in which the rule of law has more of a place than it ever did in the Obama DOJ under Eric Holder and Loretta Lynch. . . .  

Also pernicious was the Obama administration’s practice of requiring settling parties to pay third-party organizations, many of them left-of-center, that were not involved in the underlying cases or harmed by the conduct of defendants. The practice closely resembled a DOJ-imposed slush fund for liberal interest groups. Sessions asserted, “Nowhere does the Constitution grant unelected attorneys or political appointees the power to effectively appropriate and distribute funds based on their political alliances.” DOJ put an end to third-party settlements in June. . . .

Besides its work to revive adherence to the Constitution’s provisions regarding the structure of the government, this DOJ has shown that its dedication to the rule of law extends to the direct protection of individual rights. Sessions issued guidance to all executive departments and agencies summarizing 20 principles of religious liberty and instructing them to “vigorously enforce Federal law’s robust protections for religious freedom.” . . . The current DOJ also has taken positions in litigation not involving the federal government that aggressively advance First Amendment rights and that would have been unthinkable a year ago. . . . As a contrast to Eric Holder’s 2013 suit to block Louisiana’s school voucher program, which primarily aided the state’s poorest minority children who were trapped in substandard schools, consider how Sessions’ fidelity to existing law has enabled him to pursue new milestones in advancing civil rights. DOJ is currently reviewing a complaint from over 60 organizations accusing Harvard University of discriminating against Asian-American applicants. Months earlier, it secured a 49-year sentence in the first case prosecuted under the Hate Crimes Prevention Act for the murder of a victim due to gender identity and deployed an attorney to assist in a state prosecution following the murder of a transgender student. . . .

Attorney General Sessions himself described on Tuesday how enforcing the law and increasing respect for law enforcement has dramatically reduced the violent crime rates that had risen under the Obama DOJ.

Ms. Severino concludes by noting that these changes, and the other changes described in the article, are only possible because Attorney General Sessions is deeply committed to the rule of law:

Like the rest of Sessions’ initiatives as attorney general, this recent development flows from his commitment to the rule of law, whether it diminishes unilateral executive action in deference to the elected officials who bear lawmaking responsibility under the Constitution or vigorously enforces laws duly enacted by constitutional process. What a welcome change from the previous DOJ.

We thank Attorney General Sessions for his commitment to the rule of law.  The RNLA will explore the many ways the Trump Administration is restoring the rule of law at its annual National Policy Conference on Friday, April 27, in Washington, DC.  More information and tickets are available here.

Department of the Interior Rescinds Obama-Era Interpretation That Would Make Nearly All Americans Criminals

Last week, the Department of the Interior (DOI) took a little-known but important step to undo an eleventh-hour expansion of the law by the Obama Administration.  In a memorandum issued January 10, 2017, the DOI Solicitor determined that the Migratory Bird Treaty Act (MBTA) prohibits the accidental or "incidental" taking of migratory birds.  The practical effects of this opinion were very broad, but fortunately it was suspended pending review on February, and the DOI Solicitor officially rescinded it last Friday.

The opinion analyzes in detail the history, caselaw, and relevant interpretive guidance for this provision, before concluding by outlining the serious constitutional and rule of law problems with the January 10 opinion (internal footnotes omitted):

The Supreme Court has recognized that "[a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required." "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Accordingly, a "statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." . . . Assuming, arguendo, that the MBTA is ambiguous, the interpretation that limits its application to affirmative and purposeful conduct is necessary to avoid grave constitutional infirmities. . . . Further, if the MBTA is ambiguous, a narrower construction of the MBTA is consistent with the rule of lenity. . . .

The opinion then notes that the January 10 interpretation would extend criminal liability to nearly every American (emphasis added):

The "scope of liability" under an interpretation of the MBTA that extends criminal liability to all persons who inadvertently or accidentally kill or take migratory birds incidental to another activity is "hard to overstate" and "offers unlimited potential for criminal prosecutions." "The list of birds now protected as 'migratory birds' under the MBTA is a long one, including many of the most numerous and least endangered species one can imagine." Currently, over 1000 species of birds - "nearly every bird species in North America" - are protected by the MBTA. According to the U.S. Fish and Wildlife Service, the top "human-caused threats to birds" are: 

• Cats, which kill an estimated 2.4 billion birds per year;
• Collisions with building glass, which kills an estimated 303.5 million birds per year; 
• Collisions with vehicles, which kill an estimated 200 million birds per year;
• Poisons, which kill an estimated 72 million birds per year; 
• Collisions with electrical lines, which kill an estimated 25 million birds per year . . . . 

Interpreting the MBTA to apply strict criminal liability to any instance where a migratory bird is killed as a result of these "human-caused threats" would be a clear and understandable rule.  It would also turn every American who owns a cat, drives a car, or owns a home--that is to say, the vast majority of Americans--into a potential criminal. Such an interpretation would lead to absurd results, which are to be avoided.

The opinion then notes that reliance on prosecutorial discretion to avoid abuses of the law does not cure the constitutional concerns:

This is the epitome of vague law. Under this approach, it is literally impossible for individuals and companies to know what is required of them under the law when otherwise lawful activities necessarily result in some accidental bird deaths. Even if they comply with everything requested of them by the Fish and Wildlife Service, they may still be prosecuted, and still found guilty of criminal conduct. The absence of clear, public, and binding standards effectively authorizes or encourages discriminatory enforcement, particularly against disfavored industries or persons. In sum, due process "requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement."' Current governmental practice suggests that the application of the MBTA to incidental activities fails to satisfy this requirement. As the Supreme Court has recognized, "[w]ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law."

We are grateful that the Trump DOI, led by Secretary Ryan Zinke and the Office of the Solicitor, has seriously analyzed the MBTA and respected the rule of law and its basic requirement of fair notice, instead of bowing to pressure from radical environmental organizations that would turn nearly all Americans into criminals.

President Trump Had Considerable Success Restoring The Rule of Law In 2017

RNLA Co-Chair Joanne Young wrote today in The Daily Caller about how successful President Trump has been restoring the rule of law in 2017.  It began with Attorney General Jeff Sessions and the Department of Justice:

At every turn, Sessions has had to fight against entrenched, liberal career employees and Obama holdovers. But Sessions has remained dedicated. He has increased focus on vigorous and equal enforcement of the laws to reduce violent crime, ended third-party settlement practices that directed taxpayer dollars to liberal outside groups, and defended the rule of law in litigation, such as supporting voter ID laws, free speech, and religious liberty. The process of restoring the rule of law to the Department of Justice will take years, but President Trump and Attorney General Sessions have had an effective first year.

And continued with Supreme Court Justice Neil Gorsuch and other exemplary new federal judges:

At just 50 years old, Justice Gorsuch will serve on the nation’s highest court for many years to come. In his 10 years on the Tenth Circuit, he had demonstrated a commitment to adhering to the text of the Constitution, statutes, and regulations, even when it led to unfortunate results on the facts. He had shown his dedication to the principle that it is for the legislature to decide policy and enact it in law and for judges to apply that law, without inserting their own policy preferences. While his commitment to the rule of law and textualism has earned him the scorn of liberals, it protects the right of the American people to be ruled by the law written by their elected representatives, not by the whim of unelected judges.

President Trump has also started rolling back overreaching regulations and unlawful policies across the Executive Branch:

On taking office, President Trump immediately began rolling back the regulatory overreach that was the hallmark of the Obama years. On January 30, he directed that when an agency promulgated a new regulation in 2017, it had to identify two regulations to repeal. He has periodically directed agencies to review the permissibility of particular rules or interpretations that have impermissibly expanded the scope of certain laws and regulations, such as when he directed the Environmental Protection Agency’s Administrator to review the “Waters of the United States” rule on February 28. 

As the agency personnel nominated by President Trump have taken office, they have worked to review and undo the harmful and expansive interpretations of the Obama years in their agencies. For example, in October, EPA Administrator Scott Pruitt ended the “sue and settle” practices whereby radically liberal environmental organizations controlled how the EPA interpreted its own rules through litigation, often being paid with taxpayer money for their efforts. . . . Or consider Federal Communications Commission Chairman Ajit Pai, [whose] proposal to undo the FCC’s own regulatory overreach of the Obama years, “net neutrality,” was approved last Thursday, despite personal, racially tainted attacks against Pai and his family by outraged liberals. . . . Net neutrality was imposed through an FCC power grab whereby, after 20 years of bipartisan agreement over the Internet, the FCC unilaterally reinterpreted its own governing laws without congressional authorization, despite the previous FCC Chairman admitting that he did not know how the new rule would be interpreted.

Ms. Young concludes by pointing to the very real world consequence of decreased and clearer regulations: a booming economy.  Likewise, judges and a Department of Justice that respect the rule of law protect the rights of all people, ensuring a brighter future for all Americans.