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Job protections for administrative law judges are unconstitutional, DOJ concludes

homesafetytechpros — Sat, 08 Mar 2025 07:31:58 +0000

Administrative Law

Job protections for administrative law judges are unconstitutional, DOJ concludes

February 24, 2025, 2:17 pm CST

The U.S. Department of Justice has concluded that “multiple layers of removal restrictions” for administrative law judges are unconstitutional. (Photo by Kevin Lamarque/Reuters)

The U.S. Department of Justice has concluded that “multiple layers of removal restrictions” for administrative law judges are unconstitutional.

The decision was revealed in a Feb. 20 press release from the DOJ, a Feb. 20 letter to Republican U.S. Sen. Charles Grassley of Iowa and a Feb. 11 court filing, report Law360, Reuters and the New York Times.

The administrative law judges are protected by two laws, the letter says. One says administrative law judges can be removed “only for good cause established and determined by the Merit Systems Protection Board.” Another says board members may be removed by a president “only for inefficiency, neglect of duty or malfeasance in office.”

The laws violate a president’s authority under Article II of the Constitution by restricting their “ability to remove principal executive officers, who are in turn restricted in their ability to remove inferior executive officers,” the letter says.

Administrative law judges decide disputes in administrative hearings for executive branch agencies that include the Social Security Administration, the National Labor Relations Board, the U.S. Securities and Exchange Commission and the U.S. Patent and Trademark Office, according to Law360 and the New York Times.

The New York Times called the decision “the latest step in the administration’s unfolding assault on the basic structure of the federal government and on Congress’ power to insulate various types of executive branch officials in sensitive positions from political interference from the White House.”

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Teachers say Trump’s anti-DEI rules are unconstitutional

homesafetytechpros — Thu, 06 Mar 2025 02:34:50 +0000

President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).

The Trump administration has hung “a sword of Damocles” over the heads of teachers and schools in their efforts to forbid diversity, equity, and inclusion (DEI) initiatives in public education, a lawsuit filed Wednesday in New Hampshire federal court alleges.

On Valentine’s Day, the civil rights division within the U.S. Department of Education (DOE) sent out a “Dear Colleague” letter to educational institutions that receive federal funding. The government warned institutions “must cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond” or “face investigation and loss of federal funding.”

The plaintiffs, in their 48-page lawsuit, said the DOE’s guidance amounts to a “fundamental contradiction” by referencing civil rights law, violates “due process in failing to set clear standards,” and chills “First Amendment protected speech and expression” in a way that “could not stand no matter the process followed.” To that end, the correct — mandatory — process was not followed, the lawsuit adds.

“The Letter fails to acknowledge — let alone explain — its marked change from [the DOE’s] prior guidance and interpretations of Title VI, as well as other federal civil rights and education laws,” the filing reads. “And it fails to account for reliance interests created by decades of law, regulations, and longstanding agency guidance and interpretations. Moreover, it exceeds [the DOE’s] authority and is contrary to law, including the body of law it purports to interpret.”

Led by the National Education Association and its New Hampshire affiliate, the lawsuit seeks a declaratory judgment that the Feb. 14 letter violates the First and Fifth Amendments, that the letter is “arbitrary, capricious, an abuse of discretion, not in accordance with law, contrary to constitutional right, in excess of statutory jurisdiction, and without observance of procedure required.”

The chief problem with the letter, according to the plaintiffs, is that it is unconstitutionally vague because it relies on “conclusory and unsupported generalizations” while at the same time offering “no guidance that would help a school to understand how [the DOE] would apply existing legal precedent to reach these conclusions.”

These “sweeping conclusions about the existence of legal violations across states, local educational agencies, and educational institutions” amount to defects that make it impossible for people to understand what, exactly, is being changed, how to abide by the changes, and on what authority the changes are even being made. And this state of affairs violates the constitution, the lawsuit alleges.

“The Letter is impermissibly vague and violates the Fifth Amendment due process rights of Plaintiffs,” the filing reads. “All of its prohibitions are unclear and undefined, broad in scope, and turn on subjective judgement. To take an example, although the Letter asserts that ‘DEI programs’ unlawfully ‘discriminate,’ it fails to define what constitutes a ‘DEI program,’ explain how such programs ‘preference’ certain racial groups, or provide criteria for determining the circumstances under which educational programs that in any way address race might violate federal anti-discrimination law.”

Other examples follow:

Member B is an 8th Grade Social Studies teacher who covers United States history from the Civil War to the modern era, including state-required instruction on genocide and antisemitism and lessons on Juneteenth, the Reconstruction era, the Civil Rights Act of 1866, the Fourteenth and Fifteenth Amendments, the Black Codes, the KKK, the Jim Crow Era, the Compromise of 1877, the Tulsa race massacres, and other topics that necessarily touch on concepts of race, racism, and slavery. She does not know how she can teach or facilitate student research and discussion of these topics without creating a risk of being accused of violating the Letter’s vague conception of illegal discrimination. She feels that she is being held hostage to students and parents’ vague conceptions of discrimination and DEI under the Letter, which creates a risk to her career through its reporting mechanisms

More Law&Crime coverage: ‘Planned eliminations’: Reinstated Biden ethics enforcers proving to be a real thorn in Trump’s ability to fire federal workers

As a close second, the letter also infringes on First Amendment rights to free speech and free association, the plaintiffs allege.

“The Letter unconstitutionally penalizes the protected speech of Plaintiffs’ members by threatening to withhold federal funding from any educational institution that provides a ‘DEI program,”” the lawsuit reads.

And, to hear the plaintiffs tell it, the Trump administration made matters worse for teachers with the late February announcement of a website where “members of the public” are invited to upload so-called “receipts of betrayal” that identify educational institutions that promote “divisive ideologies and indoctrination.”

The filing predicts a dire upshot from such efforts, at length:

The loss of federal funding would be devastating to almost any educational institution, including the institutions that employ Plaintiffs’ members. A [DOE] investigation premised on the vague prohibitions in the Letter, in conjunction with the so-called “receipts of betrayal,” would impose onerous legal, administrative, and reputational costs on the targeted institution.

To avoid these costs, it is foreseeable that educational institutions will take steps to suppress any expression that could be construed as a “DEI program.” Because the Letter does not offer any guidance as to what constitutes a DEI program, any curricular or even extracurricular speech at an educational institution that conceivably runs afoul of [the DOE’s] positions on race, diversity, equity, or inclusion is at risk of being censored or penalized.

Plaintiffs’ members reasonably fear that their educational institutions will investigate, discipline, or take other adverse action against them if they continue to discuss with students issues pertaining to race, diversity, equity, or inclusion. Plaintiffs’ members also fear adverse action if they continue to assign readings, invite guest speakers, or engage in discussion and debate with students on anything that might be construed to fall within these prohibited categories

The lawsuit also complains the letter and its associated guidance was improperly issued by the agency and subagency in question.

“The Letter reflects final agency action,” the lawsuit reads. “It sets forth substantive obligations that it vows to ‘vigorously enforce,’ declares [the DOE’s] intention to ‘take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in th[e] letter,’ invites complaints, and announces that [the DOE] will begin enforcement as of February 28, 2025. Yet throughout the Letter, [the DOE] wholly eschews the congressionally imposed procedures designed to ensure that agency actions are not arbitrary and capricious but reasoned and within their sound expertise.”

At the heart of the matter is the plaintiffs’ belief that the Trump administration is attempting to dictate school curriculums and teachers’ lesson plans in order to root out the bugbear of DEI.

“In addition to its many procedural failings, the Letter’s substance is contrary to the constitutional rights of academic institutions and educators,” the filing goes on. “In its parts and as a whole, the Letter mandates compliance while at the same time leaving schools and educators without clear notice of the law, opening them to arbitrary and discriminatory enforcement. And it further oversteps the federal government’s role by reaching into curriculum, chilling the free speech and scholarship of academics and educators, and likewise impinging on the ability of students to hear perspectives the federal government finds objectionable.”

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And, in service of this effort, the DOE is playing fast-and-loose with language while rewriting and ignoring the relevant law, the lawsuit says. Here, specifically, the plaintiffs accuse the government of misapplying and misinterpreting the landmark 2023 U.S. Supreme Court decision barring colleges from affirmative action in admissions.

“The decision only addressed race as a formal admissions factor in higher education — it did not ban curriculum, student groups, DEI programming, or race-neutral diversity initiatives,” the American Civil Liberties Union, whose attorneys are representing the teachers union plaintiffs, said in a press release announcing the litigation.

The lawsuit, at its core, also reads as a full-throated endorsement of DEI principles from the nation’s largest labor union.

The original petition begins:

“The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Our schools cannot fulfill their role as the nation’s “nurseries of democracy,” without teaching students about the world, including the historical and lived experiences of people of different races, genders, and abilities. Diversity, equity, and inclusion initiatives are critical to that effort by both expanding equal educational opportunity and providing students with an education that prepares them to succeed in a diverse democratic society.

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Republican AGs say Jack Smith’s office is unconstitutional

homesafetytechpros — Sat, 02 Nov 2024 21:33:06 +0000

Left: Special Counsel Jack Smith speaks about an August 2023 indictment of former President Donald Trump at a DOJ office in Washington (AP Photo/J. Scott Applewhite, File). Center: President Joe Biden delivers remarks on lowering the cost of prescription drugs, at NHTI Concord Community College, Tuesday, Oct. 22, 2024, in Concord, N.H. (AP Photo/Steven Senne). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).

In something not entirely unlike an “all hands” call to action, Republican attorneys general from 20 different states are now trying to convince a federal court of appeals that the Mar-a-Lago documents indictment against Donald Trump should remain dismissed.

The 33-page amici curiae — or friends of the court — filing was submitted late Friday with the U.S. Court of Appeals for the 11th Circuit. The motion purports to represent the states of Florida, Iowa, Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, And West Virginia.

In yet another iteration of a sustained legal pile-on, the brief argues special counsel Jack Smith was appointed to his position “unlawfully” — in violation of strong, time-honored executive, or presidential, authority.

“[U]nlike a U.S. Attorney, Smith faces next-to-zero presidential accountability,” the brief reads. “He was not appointed by the President and confirmed by the Senate. Nor is he subject to the plenary supervision of an official who was.”

The GOP elected officials say their constitutional argument is distinct from extant similar arguments — including those already made by the defense — that have to do with the Appointments Clause (and the closely-related Appropriations Clause.)

“Smith acted under regulations that authorize the exercise of core executive power unguided by the plenary control of the President or any principal officer accountable to him,” the motion reads. “Because those regulations violate Article II of the Constitution, Smith’s actions under them are invalid.”

As Law&Crime previously reported, including once earlier on Saturday, the amici’s arguments here are one more among many such efforts; on at least two federal dockets; and they are essentially a replay of a battle between various amici groups when the Mar-a-Lago case was being overseen by U.S. District Judge Aileen Cannon.

That fight began with Trump’s own defense citing the clauses in a February motion to dismiss. Then, right-of-center groups, law professors, and legal scholars argued against Smith’s appointment in a deluge of motions practice allowed by the district court. Oppositely, left-of-center law professors, historians, and legal scholars argued Smith was validly — and non-controversially — exercising his authority.

More Law&Crime coverage: ‘The challenged appointment must be invalidated’: Conservative nonprofits join the fight against Jack Smith in 11th Circuit to try and affirm Mar-a-Lago case dismissal

The lower court, of course, famously ordered a kibosh on proceedings based on that novel understanding of the Appointments Clause of the U.S. Constitution advanced by Supreme Court Justice Clarence Thomas.

The analysis offered by Thomas came in the landmark ruling where Chief Justice John Roberts issued a broad grant of presidential immunity to Trump.

Thomas was the only justice to cite the long-simmering Appointments Clause issue in an unfavorable light for the government in any of the opinions attached to Trump v. United States. The majority opinion actually lists several ways in which the appointments power inures to the executive’s benefit. Thomas was also the only justice to mention the phrase “Appointments Clause” directly.

In August, Smith filed his opening salvo in a bid to resuscitate the long-beleaguered case. Since then, the 45th president has raised the clauses in an effort to affirm the lower court’s dismissal of the case.

In the present motion, the Republican AGs are offering another separation of powers argument — though one that differs substantially from others that have previously been made before the 11th Circuit. The clauses-related arguments which have largely been essayed thus far in the case implicate the same field of constitutional theory but are not quite the same as what the attorneys general are saying here.

“[I]nherent in Article II’s vesting of the executive power in the President is the authority to control, and if necessary, remove subordinate executive officials at will,” the motion reads.

That, however, is not what Attorney General Merrick Garland purported to create when he imbued Smith with his title and power.

“Indeed, the avowed purpose of Special Counsel Smith’s appointment was to remove responsibility — and thus political accountability — for the investigations and prosecutions under his purview from the current Administration,” the brief continues.

And, the AGs argue, this precise effort to keep Smith wholly independent from the Biden administration has created something of an unconstitutional Frankenstein’s monster.

“The result: A single executive officer now unilaterally resolves massively consequential, politically fraught issues like whether to indict a former president and current presidential candidate and what position the United States will take as to whether and to what extent a President enjoys immunity from criminal prosecution,” the brief goes on. “Article II does not give the Attorney General the authority to vest the executive power in Jack Smith.”

The motion offers an analogy to make their point:

No department head in the Executive Branch has the authority to do what the Attorney General has done in the special-counsel regulations. The Attorney General may no more create a new prosecutorial unit in the Department of Justice and place it under the control of a tenure-protected special counsel than may the Secretary of Defense create a new branch of the military and place it under the control of a tenure-protected branch chief. That would remain true even if the reason the Secretary did so was that the President had a conflict of interest because, for example, his son was a member of that branch deployed in a combat zone.

“It makes no difference if the President acquiesced in the relevant regulations at the time they were promulgated,” the brief continues. “A President is of course free to take a hands-off approach ‘in his dealings with subordinates,’ but he may not ‘bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.’ The Attorney General cannot do so either.”

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Was Jack Smith’s appointment unconstitutional? He has no more authority than Taylor Swift, amicus brief argues

homesafetytechpros — Thu, 28 Dec 2023 00:42:46 +0000

Constitutional Law

Was Jack Smith’s appointment unconstitutional? He has no more authority than Taylor Swift, amicus brief argues

By Debra Cassens Weiss

December 21, 2023, 2:21 pm CST

Veteran prosecutor Jack Smith in August 2010. According to an amicus brief signed by a former U.S. attorney general and two law professors, Smith’s appointment was unconstitutional, leaving him powerless to obtain a quick U.S. Supreme Court decision on immunity claims by former President Donald Trump. Photo by Charles Dharapak/The Associated Press.

Special counsel Jack Smith’s appointment was unconstitutional, leaving him powerless to obtain a quick U.S. Supreme Court decision on immunity claims by former President Donald Trump, according to an amicus brief signed by former U.S. Attorney General Edwin Meese and two law professors.

“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the Dec. 20 amicus brief argues. “Improperly appointed, he has no more authority to represent the United States in this court than Bryce Harper, Taylor Swift or Jeff Bezos.”

The law professors who co-wrote the brief with Meese are Steven G. Calabresi of the Northwestern University Pritzker School of Law and Gary S. Lawson of the Boston University School of Law.

Calabresi summarized the arguments in a post for the Volokh Conspiracy.

The brief argues that Attorney General Merrick Garland “exceeded his statutory and constitutional authority” when he appointed Smith in November 2022. Because Smith’s appointment was unconstitutional, “every action that he has taken since his appointment is now null and void,” Calabresi argued at the Volokh Conspiracy.

Smith—who was not nominated to be special counsel by President Joe Biden or confirmed by the U.S. Senate—has nationwide jurisdiction, making him more powerful that any of the 93 Senate-confirmed U.S. attorneys, Calabresi said. Federal law allows the attorney general to appoint attorneys to assist U.S. attorneys but not to replace them, he wrote.

The argument is that the appointments clause requires all federal offices “not otherwise provided for” in the Constitution to be established by law. Yet there is no statute establishing the Office of Special Counsel within the U.S. Department of Justice. Nor is there a statute allowing the attorney general to appoint an inferior officer special counsel with the powers given to Smith. And inferior officers, in any event, must be controlled by a superior officer, but Garland doesn’t have that power over Smith under DOJ regulations.

The appointments clause makes clear that the “default mode” of appointment for all officers is presidential nomination, Senate confirmation and presidential appointment, the brief says.

There is a proper way to appoint a special counsel like Smith, Calabresi said at the Volokh Conspiracy. Garland should “ask one of the very best Senate-confirmed U.S. attorneys now in office to prosecute the cases arising out of the events of Jan. 6, 2021, or the misuse of classified documents case, to be special counsel” with nationwide authority.

The attorney general could then appoint Smith to be the special counsel’s special assistant, and the Trump cases could then be “restarted from scratch” Calabresi wrote.

“We do not want future U.S. attorney generals, such as the ones Donald Trump might appoint, if he is reelected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” Calabresi wrote. “Think of what that would have led to during the McCarthy era.”

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