Email #212: “Most troublesome of all”?

Just as there is a process for creating laws, there is a process for creating the rules and regulations that enforce those laws. This week a court struck down the EPA’s two-year stay on enforcing a methane regulation, deciding that it is “an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule.”

As you know, the EPA must first write a Notice of Proposed Rulemaking and list it in the Federal Register for others to comment on. Only after considering those comments can the EPA issue a final rule, list it on the Federal Register, and codify it by adding it to the Code of Federal Regulations. The EPA ignored that process by effectively revoking a current rule created to enforce the Clean Air Act.

In the past you have argued that the process for developing regulations is essential and that rules that did not follow it were illegitimate. You said in March that you opposed the Stream Protection Rule because the Office of Surface Mining Reclamation and Enforcement (OSM) did not follow the process:

“Most troublesome of all, OSM did not comply with the requirement to engage in meaningful consultation with the impacted state governments during the yearlong development of this rule. In fact, several states dropped out of the rule development process altogether due to frustration with OSM.”

Why then are you not objecting to the EPA’s actions now? They too are not complying with the requirement to engage in meaningful consultation. Worse, they have eliminated the rule development process altogether.

Do you not care about the process and were only using it as an excuse to oppose the Stream Protection Rule? Is this yet another example of your evoking a principle in one situation and then ignoring that same principle in a different situation? Do you have any guiding principle other than political convenience?

Email #170: “cannot go unchecked”?

You said in March about the President’s travel ban:

“The Ninth Circuit was wrong on the first executive order, but I am pleased that President Trump is moving forward with a revised plan to keep Americans safe.”

Like the first, the President’s revised order has since been blocked and yesterday that block was upheld by a Virginia appeals court in a 10-to-3 decision.

When you wrote to me in January about the possibility of then President-elect Trump abusing his power, you assured me that you would “continue to uphold our Constitution” and that its “three co-equal branches of government” prevents “one branch from assuming too much authority without a challenge from the other branches of government.”

I see now that you were right. Judge Gregory reasoned similarly:

“Congress granted the president broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

You also said that courts “have the power to review the constitutionality of statutes and presidential actions.” Judge Wynn agrees with you, arguing that judges shouldn’t “blindly defer” to executive action:

“because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.”

I am disappointed that no challenge came from you though, especially since you have repeatedly stated that “checking the executive branch” is one of your top priorities.

You have, however, described the President’s ban in reasonable terms, arguing that “it’s sensible to hit pause on admitting foreign nationals and refugees from countries where adequate screening cannot occur.” But Gregory and the other nine judges viewed it in light of the President’s anti-Muslim campaign statements and concluded that it “drips with religious intolerance, animus and discrimination.” The judges who blocked both versions of the executive order reasoned similarly. Do you still disagree with them?

I understand that the President may appeal the ruling to the Supreme Court. Would you advise him to do so? I read that such an appeal needs to show that the government would suffer irreparable harm if the 90-day ban was not reinstated. But more than 90 have passed since the President issued the first executive order. The administration said it needed that much time to change their vetting process, and presumably that’s what they’ve been doing.

So isn’t the ban now obsolete? The moment “to hit pause” has come and gone. Why should the Justice Department continue to spend tax-payer dollars defending the 90-day ban in court when the ban’s intended 90 days have already passed?

While I of course agree that the government should “keep Americans safe,” the battle over the ban seems to have devolved into pure politics, with supporters of the President supporting the out-dated executive order only because he issued it. So I urge you not to comment on yesterday’s ruling and focus instead on approaches to national security with bipartisan support. Keeping Americans safe is a unifying issue. Please don’t use it to divide us further.