Bench Memos

Law & the Courts

What a Difference a Year Makes in the Justice Department

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.

Remedying abuses of power

Start with one of the most egregious exposed abuses of power in recent years—the IRS’s targeting of conservative groups with names containing words such as “tea party” or “patriots,” which provoked two lawsuits seeking relief from the government’s conduct. In October, Sessions announced a settlement with the 469 parties that had filed suit. He did not mince words in denouncing the agency’s conduct, noting that “without question our First Amendment prohibits the federal government from treating taxpayers differently based solely on their viewpoint or ideology. There’s no excuse for this conduct.” The settlement, he added, would “make clear that the abuse of power will not be tolerated.”

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.

Addressing illegal immigration and respecting Congress

The previous administration’s disregard for the rule of law did not end there, and Sessions accordingly did not stop there. Having failed to secure passage of the DREAM Act, which would have legalized immigrants who had illegally crossed the border as minors, by the constitutionally prescribed legislative process—passage by the House and Senate prior to presidential approval—the Obama administration unilaterally promulgated the Deferred Action for Childhood Arrivals (DACA) through the Department of Homeland Security to accomplish the same goal, complete with work permits that were unauthorized by existing law. By September, Sessions had announced the program would be repealed. That President Trump and members of Congress are now discussing whether the content of DACA shall make its way into legislation is a sign that, as both supporters and opponents of the DREAM Act should agree, the legislative and executive branches are operating according to regular constitutional order. (The judicial branch is another matter, at least for the moment: A politically trigger-happy district judge in San Francisco just issued a brazenly activist decision holding that the administration could not repeal DACA, but the Supreme Court is likely to overturn the ruling for reasons that should be obvious from a previous Fifth Circuit ruling striking down a similar Obama-era directive that applied to illegal immigrant parents of U.S. citizens.)

The DACA repeal is part of the Trump administration’s re-prioritization of immigration enforcement, which may have contributed to the substantial drop in illegal border crossings over the last year. Sessions supplemented related efforts with a deployment of over 100 immigration judges to detention facilities in order to expedite the adjudication of immigration cases and by authorizing DOJ court filings on behalf of municipal law enforcement authorities who had to fight for their right to cooperate on immigration enforcement with the federal government.

The attorney general also cracked down on the deadly international gang MS-13, and DOJ, in conjunction with its Central American government counterparts, filed charges against 3,800 gang members.

In October, DOJ announced it would end the Obama administration’s practice of making cost-sharing reduction payments to health insurance companies in the absence of an appropriation authorized by Congress. Article I, Section 9, Clause 7 of the Constitution provides, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Obamacare had not included such an appropriation, so the payments were illegal, as a district court held when the payments were challenged.

Sessions is also reining in the extraconstitutional proliferation of the administrative state. For years, DOJ and other federal agencies have, under the guise of issuing guidance documents, imposed de facto regulations that bind parties outside the executive branch. In November, the attorney general issued a memorandum prohibiting DOJ from issuing guidance documents that had the effect of adopting new regulatory requirements or amending the law. It restored the proper role of guidance documents as “plain-language restatements of existing legal requirements” or “non-binding advice on technical issues” that guide the interpretation of law, not instruments of coercion.

Restoring religious liberty and free speech

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.” DOJ soon followed by settling lawsuits with 87 plaintiffs, most of them religious colleges, hospitals, charities, and other organizations that challenged the Obama administration’s contraception mandate, yet another sweeping agency-enacted rule. The move reflected overdue compliance with the Religious Freedom Restoration Act. Sessions again minced no words in characterizing the burdens on the plaintiffs: “Their claims were just. They had been improperly constricted in their right to freely exercise their religious beliefs.” (The rule itself was changed by the Department of Health and Human Services to allow employers and insurers to decline to provide birth control based upon their sincerely held religious beliefs or moral convictions.)

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. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, one of the most watched cases before the Supreme Court this term, the solicitor general filed a brief on behalf of the baker who challenged a Colorado law that compelled him to create a same-sex wedding cake contrary to his religious beliefs. Another brief filed before the Court in Janus v. AFSCME argues that public sector workers cannot be forced to pay for a union’s collective bargaining activities, which reversed the position of the previous administration in a similar case before the Court in 2016. In two lower court cases, Sessions’ DOJ filed statements of interest on behalf of students challenging campus speech codes.

Reaching civil rights milestones

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.

Sessions’ DOJ filed hate crimes indictments in other cases involving several culprits who allegedly lured gay men with a dating app in order to attack them and an accused arsonist who set fire to a mosque. Even the New York Times admitted that Sessions, who denounced the car attack in Charlottesville in August as “evil” and meeting the “definition of domestic terrorism,” had emerged as a “forceful figure in condemning Charlottesville violence.” Perhaps that is as close to an apology as he will get for the many scurrilous attacks against him, including a recycled 30-year-old smear campaign, from the moment he was nominated.

Restoring law and order

Beyond such violence and the depredations of MS-13, the attorney general has given extra attention to other proliferating areas of criminal activity, with grant funding dedicated to placing over 800 additional full-time law enforcement officers across the country and enhancement of the Project Safe Neighborhoods program. After Sessions directed prosecutors to focus on reducing violent crime, there occurred a 23% increase in the number of defendants charged with illegal possession of firearms. On the human trafficking front, prosecutors secured convictions of eight members of an international criminal organization for forced prostitution.

The country’s opioid epidemic, which has become a national crisis, is another priority. Sessions launched a new unit of DOJ, the Opioid Fraud and Abuse Detection Unit, to implement a crackdown that helped bring about the largest enforcement action ever undertaken, with 412 defendants charged for illegally prescribing or distributing dangerous narcotics and AlphaBay, the largest internet marketplace for criminal opioids, seized.

In May, the attorney general reversed Holder’s policy instructing prosecutors not to charge certain individuals with drug offenses that would trigger lengthy mandatory minimum sentences. Sessions still allowed prosecutors to seek approval to make exceptions in order to avoid injustice, but by untying their hands to charge defendants with the most serious, readily provable offenses, he gave them an effective tool to improve enforcement that would diminish a growing national problem in accordance with the aims expressed by Congress in the criminal code.

Earlier this month, Sessions rescinded the prior administration’s directive essentially refusing to enforce federal marijuana laws in states that had legalized the drug. This was met by a torrent of criticism in the press. Even putting aside the dangers of increasingly potent pot and the harm legalizing states have incurred on neighboring states, the level of opposition to this recent development is mystifying. Far from prioritizing marijuana prosecutions, the DOJ directive merely leaves it to prosecutors to use their judgment in cases where state law conflicts with federal law instead of tying their hands with a blanket prohibition on enforcing federal law. Does it occur to these critics that calling on Congress to change the law would be a more appropriate response than criticizing those whose constitutional responsibility is to execute the 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.

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