Mueller-Report Standoff Echoes 1982 Fight Involving Neil Gorsuch’s Mother

Thorny legal questions about relations between Congress and executive branch could be decided by Supreme Court

The standoff between Attorney General William Barr and Congress over access to the full, unredacted report from special counsel Robert Mueller has parallels to a 1982 fight involving the late Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.

The thorny legal questions about relations between Congress and the executive branch that were in play then and today could end up being decided by a Supreme Court that now features her son, Neil Gorsuch.

Then, like now, a Democratic House of Representatives wanted access to documents that a Republican president said were privileged law-enforcement materials. As a result of the Reagan administration’s refusal to comply with a congressional subpoena, Ms. Burford was cited for contempt, sparking a legal battle that culminated in her resignation.

Mr. Barr, who was a young lawyer in the Reagan administration at the time of the showdown involving Ms. Burford, is also expected to be cited for contempt. House Democratic leaders have scheduled a vote this week on a contempt resolution that would authorize a House lawsuit for access to the full Mueller report on Russian election interference. The Trump administration has said the report is protected by executive privilege. Another House committee is considering a separate contempt effort against Mr. Barr over census documents.

If either measure passes the full House, Mr. Barr will be only the third agency head ever held in contempt of Congress. Ms. Burford was the first, and Eric Holder, who was attorney general under President Barack Obama, was the second.

The Supreme Court has never decided the question of whether a congressional demand for information can overcome an executive-privilege claim by a presidential administration.

The 1982 fight involving Ms. Burford had its roots in the belief among a number of young lawyers in the Reagan administration that the Watergate scandal had weakened the presidency as an institution. Those lawyers wanted a test case to strengthen the executive branch’s hand in fighting back against demands from Congress for information and found one in Ms. Burford.

The Burford fight “was all part of the Reagan plan to retrieve purported lost powers as a result of Watergate and to create this unitary executive theory,” said Morton Rosenberg, a longtime legal analyst for the Congressional Research Service and now a fellow at the nonpartisan Project On Government Oversight.

Ms. Burford wrote in her 1986 memoir “Are You Tough Enough?” that the Reagan administration had first sought to enlist the interior secretary and the attorney general as possible test cases on executive privilege but they refused. Ms. Burford, however, agreed to test the constitutionality of an executive-privilege claim by refusing to hand over documents to Congress.

At issue were congressional subpoenas demanding information on hazardous waste dumps from the EPA. Mr. Reagan ordered Ms. Burford not to comply with the subpoena, citing the doctrine of executive privilege—a legal theory that has been blessed by courts that allows a president to shield some documents from public scrutiny in certain circumstances. In the landmark 1974 case United States v. Nixon, a unanimous Supreme Court said that executive privilege doesn’t protect documents in a criminal inquiry—in that case, Watergate—but has never decided a matter involving Congress.

Mr. Reagan’s executive-privilege claim prompted a fight with Congress that would result in the contempt citation against Ms. Burford. The Justice Department then filed suit on behalf of Ms. Burford to try to stop the subpoenas. Ms. Burford, in her memoir, called the lawsuit “the sloppiest piece of legal work I had seen in twenty years of being a lawyer.” Ultimately, a judge dismissed the case, saying that he could only rule on the issue if Ms. Burford were being criminally prosecuted for her refusal—and encouraged both sides to reach a compromise.

.. One of Justice Gorsuch’s most controversial opinions also stems from a case that involved the EPA under Ms. Burford’s leadership, Mr. Somin noted. The legal theory of “Chevron deference” says that courts should defer to administrative agencies. It stemmed from a 1984 Supreme Court case involving the EPA’s attempts to regulate air pollution.

Though the Supreme Court upheld deference to the EPA which was led by his mother when the case was first brought, Justice Gorsuch has called the decision an “abdication of the judicial duty” and suggested he would vote to overturn the precedent if a similar case came before the Supreme Court.

Pruitt unveils controversial ‘transparency’ rule limiting what research

Apr 24, 2018 – Environmental Protection Agency chief Scott Pruitt listens to President … Scott Pruitt moved Tuesday to limit what science can be used in writing … The proposed rule would only allow the EPA to consider studies where the …

https://www.scientificamerican.com/article/scientists-favor-transparency-but-say-epa-plan-will-limit-it/

Failure to Communicate

Trump has a solid record, but he’s too busy making noise to tout it.

If a tree falls in a noisy circus, does it make a sound? If the Trump administration announces its largest deregulatory effort to date while the president is in the throes of a Twitter rampage, will anybody pay attention?

No, and thereon may hang the balance of Republican congressional control. It’s never clear where Donald Trump gets political advice, if he does at all. What is clear is that this White House is doing an able job of whiffing one of the best political messages in decades, a reality that is demoralizing administration insiders and GOP candidates alike.

.. The Environmental Protection Agency and Transportation Department released a plan—announced on the website of these pages—to ax the Obama administration’s car-emissions standards, saving consumers $500 billion. Dollarwise, it may be the biggest deregulation ever.

.. The Treasury has recommended rescinding the “payday lending” rule, which threatened to cut off the poorest Americans from viable credit.

.. The Internal Revenue Service lifted a political threat to nonprofits by allowing them to shield the names of their donors.

.. The Department of Health and Human Services finalized its rule allowing more non-ObamaCare insurance options to millions of Americans. The Senate sent a $717 billion defense authorization bill to the White House, increasing active-duty strength and providing troops their largest pay raise in nine years. The Senate also confirmed the 24th Trump circuit-court judge.

.. The Labor Department released new numbers showing worker compensation increased 2.8% year over year, the fastest pace in a decade

.. Republicans have long known they don’t get a fair hearing from the press, which is why they shifted to talk radio and other alternative media. Mr. Trump understands that better than most—thus his heavy use of Twitter, live rallies and press conferences.

.. The president is certainly focused on his base, though with an eye to whipping them up with rallies focused primarily on the polarizing issues of trade and immigration. His tweets revolve around the same issues—those and Mr. Mueller—and are often defensive or whiny.

.. If Mr. Trump makes those centrists believe this election is about family separation, Republicans lose. If he refocuses it on voters’ newly thriving prospects, Republicans have a shot.

.. One remarkable aspect of the Trump administration is its productivity. The cabinet set a pace of reform in its openings weeks that has never lagged. If Mr. Trump isn’t going to spend every day embracing, elevating and making this product of his own presidency the dominant discussion, then no one will. The press isn’t going to do it. Democrats sure aren’t. And no other Republican has that megaphone.

Brett Kavanaugh Has Shown Deep Skepticism of Regulatory State

As an appellate judge in Washington, President Trump’s Supreme Court pick is known for ruling against regulators he sees as having overstepped their bounds

His dozen years on the U.S. Circuit Court of Appeals for the D.C. Circuit have been marked with dozens of votes to roll back rules and regulations. He has often concluded that agencies stretched their power too far and frequently found himself at odds with the Obama administration, including in dissents he wrote opposing net-neutrality rules and greenhouse-gas restrictions.

.. When a divided Supreme Court in 2015 rejected the Obama administration’s rules requiring power plants to cut mercury emissions and other pollutants, the majority opinion by conservative justices drew heavily from Judge Kavanaugh.

.. The high court cited his earlier dissent when he argued that the Environmental Protection Agency had failed to consider the costs of its regulations before moving forward. The EPA, he concluded, had ignored a requirement in the Clear Air Act that the agency determine whether an electric-utility regulation is “appropriate” before imposing it.

.. Too often, he found, judges were giving agency regulators the benefit of the doubt based on a doctrine that instructs judges to give more deference when the meaning of what Congress wrote isn’t precisely clear.That was the case, he thought, when the D.C. Circuit last year reviewed the legality of net-neutrality rules adopted by the Federal Communications Commission.

In a dissenting opinion, he said the FCC didn’t have the authority to classify internet providers as “telecommunications services” and ban them from splitting internet traffic into fast and slow lanes.

.. In a dissenting opinion, he said the FCC didn’t have the authority to classify internet providers as “telecommunications services” and ban them from splitting internet traffic into fast and slow lanes.

.. “He’s not coming with a machete and slashing through agency regulation,” said Mr. Adler, defending the judge’s record. “He’s holding agencies to a slightly higher standard than other judges.”