Shades of Cheney

I am more and more reminded of the Bush-Cheney Administration. Not only are the (literal) war-horses being recycled, but the enormous disdain of Congress and the refusal of any accountability to the public are painfully familiar to any of us who endured that period.

To wit, the White House is stonewalling the Government Accountability Office, according to a May 30 report in Government Executive.  Not to give the current White House any ideas, but this is a mere sfumatura (as Italians would say) of the confrontation that Cheney created.  The following is excerpted from my 2007 book, Who Needs to Know?

On April 19, 2001, Representatives Dingell and Waxman launched joint requests to both the Vice President and the General Accounting Office concerning the Vice President’s Energy Task Force, its members, and its proceedings.

In response to the request by Representatives Dingell and Waxman, the General Accounting Office (GAO) issued the first demand letter ever to a sitting Vice President.  GAO considered its statutory authority to be clear.

Counsel to the Vice President David Addington responded to the Congressional request, explaining that the Energy Group was not subject to the Federal Advisory Committee Act.  As a matter of comity, though, he would provide some answers about the Energy Group’s members, staff and activities. Addington declared that GAO was seeking “to intrude into the heart of Executive deliberations, including deliberations among the President, the Vice President, members of the President’s Cabinet, and the President’s immediate assistants, which the law protects to ensure the candor in Executive deliberation necessary to effective government.”[1] GAO argued that even assuming this claim was accurate, it still had the authority to make the requests it had made.

On Sept. 27, for the first time in the 81‑year history of the agency, the comptroller general of the United States went to Federal court today to ask a judge to order a member of the executive branch to turn over records to Congress.

It was clear, even this early in this administration, that executive privilege was an issue of central importance to the Administration.  As John Dean—who, as counsel to former President Nixon might be considered to know something about the abuse of power—writes, “not since Richard Nixon stiffed the Congress during Watergate has a White House so openly, and arrogantly, defied Congress’s investigative authority. … Cheney has not claimed “Executive Privilege,” for the Vice President has no such power. Rather, Cheney has claimed ‑ and Bush has backed up his claim ‑ that GAO (and therefore the Congress, too) has no authority to seek the information they have requested.[2]

Dean also noted “the special attention” given this case:

In fact, it is unique in the history of the Department of Justice. Normally, this case would have been handled by the Civil Division of the Justice Department. But this case is one of a select few being handled by a newly created special unit under the direction of Deputy Solicitor General Paul Clement. …Not only is this nameless ad hoc group representing Vice President Cheney, but no less than the Solicitor General himself, Theodore Olson, was seated at the trial table in the Judge Bates’s courtroom during the recent augment. Typically, the Solicitor General only appears before the U.S. Supreme Court. For the SG to appear in the U.S. District Court was clearly designed to send a message to the Judge of the unusual importance the Bush‑Cheney Administration has given this case ‑‑ not to mention to prepare the SG for later arguing the case before higher courts.”[3]

On December 9, 2002, U.S District Judge John Bates, a Bush appointee and former Kenneth Starr deputy, ruled against GAO (Walker v. Cheney). The opinion reads:

“The parties agree that no court has ever before granted what the Comptroller General seeks – an order that the President (or Vice-President) must produce information to Congress (or the Comptroller General). Because the Comptroller General does not have the personal, concrete, and particularized injury required under Article III standing doctrine, either himself or as the agent of Congress, his complaint must be dismissed. Historically, the Article III courts have not stepped in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.[4]

This decision, in essence, secures the Bush Administration’s position that it has the right to withhold from the public–and Congress–any and all details of its policy-development meetings with non-governmental people. It also chills any attempt by Congress to use the GAO to monitor the executive branch.

We are not yet there, but not for the lack of trying by the Trump administration.

[1] John W. Dean. “GAO v. Cheney Is Big‑time Stalling: The Vice President Can Win Only If We Have Another Bush v. Gore ‑like Ruling .”  FindLaw, Friday, Feb. 01, 2002. http://writ.news.findlaw.com/dean/20020201.html
[2] Ibid.
[3] John W. Dean. “The Ongoing Fight Between the Supreme Court And Congress, as Illustrated by the GAO/Cheney Suit: Part Two Of A Series On Shrinking Congressional Powers.” FindLaw, Friday, October 25, 2002.  http://writ.news.findlaw.com/dean/20021025.html
[4] Memorandum Opinion and Order. Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002)

Government Reorganization still in the dark to both Congress and the public

UPDATE–The Southern Environmental Law Center is suing the Office of Management and Budget for failing to release information about efforts to fundamentally reorganize federal agencies responsible for managing federal public lands, including the United States Forest Service, the National Park Service, the Bureau of Land Management and the United States Fish and Wildlife Service.  SELC filed a request for information related to these reports in November 2017. After initially acknowledging SELC’s request, OMB has failed to provide the requested information or respond to inquiries pertaining to the request. Today’s suit challenging OMB was filed in U.S. District Court for the Western District of Virginia.


In January, I wrote about Government Reorganization in the dark and recounted the efforts of PEER and Government Executive to find the website that OMB purports to have set up to receive public comments, the 100,000 it alleges it received, and any information about the OMB’s plans for the agencies. The purported website previously at least took one to the bare bones OMB site; now it takes you on a wild goose chase.

That page cannot be found, or is located on an archived web page.

Past Administration Archives

On 2 May, Government Executive reported on the continuing saga.

…Agencies turned over initial versions of their plans to OMB in June of last year and final drafts in September. Lawmakers have not yet viewed the proposals and said they do not know if agencies met their deadlines.

The administration initially said the plans would be made fully available in Trump’s fiscal 2019 budget, though only a handful of agencies offered details in that document. Mulvaney recently told a congressional committee the White House would unveil the complete agency reform plans later this month.

As Gov Exec notes, however, Congress felt the need to mandate consultation on any consolidation or cutting of workforces:

Congress included several provisions in a recently passed governmentwide spending bill to ensure the Trump administration consults with lawmakers before consolidating offices or shedding workers. Several agencies have already risked running afoul of those provisions.

“The fact that the Republican-controlled Congress had to pass legislation to require the Trump administration to show us their secret reorganization plans is indicative of just how extensive the administration’s obstruction of congressional oversight has become,” Cummings said after the omnibus was enacted.

Could you prove you’re a citizen — if officials won’t accept your passport as proof & when DHS stonewalls on FOIA?

In a disturbing story today on The Marshall Project, Christie Thompson writes about Manuel Herrera, who has been in immigration detention in Hudson County, New Jersey, for almost a year. In that time, his lawyer has been fighting to prove he is a U.S. citizen.

Herrera’s parents brought him to the U.S. from Honduras in 1976, when he was 3 months old. His family had green cards that allowed them to enter legally and stay indefinitely…

He is now facing deportation based on three drug convictions and a “possession of stolen property” charge, the most recent of which was in 2002. Thanks to his immigration attorney at The Legal Aid Society in New York, though, Herrera has since discovered he may have been a citizen all along.

There are two ways Herrera might have U.S. citizenship: first, through an application to naturalize that, 22 years later, is “still pending” with U.S. Citizenship and Immigration Services. …

From the perspective of Government Information Watch, there is another aspect of his story that is especially troubling:

Citizenship is often discussed as a black-and-white issue. You were either born here or you weren’t; you either have a U.S. passport or you don’t. The Trump administration plans on asking people if they’re a citizen on the upcoming census. But there are countless cases like Herrera’s of people swept into removal proceedings who don’t know their own status.

U.S. law says Americans should never be held in immigration detention, but research shows it has happened thousands of times. A recent investigation by the Los Angeles Times found ICE released 1,480 people since 2012 because of citizenship claims. Many of these are clear-cut cases of wrongful arrest, a mistaken identity, or officials refusing to accept passports as proof. But more common are cases like Herrera’s, where an immigration attorney’s dive into someone’s history reveals they may have a legal right to be here.

…compiling the records to prove it can be a long and arduous process — especially for those without an attorney.

Herrera only uncovered his possible citizenship claim because he lives in New York, one of the few cities in the country that provides free immigration attorneys to anyone who needs one.

However, unlike criminal defendants, immigrants facing deportation have no right to legal discovery–what they have is the Freedom of Information Act. One can guess how well that has worked…

Herrera first submitted a FOIA request in August 2017. It took the government over seven months to respond. In an April immigration court hearing, an attorney for the Department of Homeland Security said the documents would have come slightly sooner but got “lost along the way.”

When his attorney [Gregory Copeland] finally received the records, he found they contained scant information on his client’s application to naturalize and no information about his father or grandfather.1 The records show ICE had not sufficiently looked into Herrera’s claim of citizenship, Copeland said. He has filed another FOIA, a subpoena, and a habeas petition in Herrera’s case, all trying to get to the bottom of whether Herrera has a right to stay in this country.

In the April hearing, the DHS attorney said releasing documents about Herrera’s father would violate his privacy rights.

1 Under U.S. immigration law, if someone becomes a citizen and has a child under 18, that child may also be a citizen. So if they can prove his grandparents naturalized before his father was an adult, and that his father lived in the U.S. for long enough, that would make his father a citizen and in turn, Herrera.

Trump Administration once again violates law and regulation on preserving government information

Yesterday, the Web Integrity Project at the Sunlight Foundation released its third report about Web censorship at the Office on Women’s Health (OWH): Removal of Breast Cancer Website and Related Webpages from within HHS’s Office on Women’s Health Website.  The report documents how the OWH Breast Cancer website and corresponding factsheets, which contained information about the disease, including symptoms, treatment, risk factors, and public no- or low-cost cancer screening programs, have been entirely removed from within the Department of Health and Human Services’ (HHS) Office on Women’s Health (OWH) website and are no longer found elsewhere on the OWH site.

The office did not proactively announce or explain the removals. The Paperwork Reduction Act1 requires that any agency must “provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products.”   The National Archives and Records Administration (NARA) also reminded agencies in December 20162 that when significant changes are made to agency websites, federal web records, including data sets, must be scheduled and transferred to NARA for preservation.  A question has been sent to NARA as to whether the agency has complied.

1 Paperwork Reduction Act, 44 U.S.C. § 3506(d)(3)

2 NARA, “Agency Responsibilities for Managing Web Records”, December 22, 2016.

Trump Admin’s secret reorganizations/staff decimation ‘swamped’ in Omnibus

In addition to the article detailing the rescue of 19 agencies Trump intended to eliminate, Government Executive writes today on the much broader issue of government reorganization—which it apparently wished to do under the congressional and public radars. In Omnibus Puts Kibosh on White House Efforts to Unilaterally Reorganize Agencies, Shed Workers, Eric Katz notes that in the omnibus spending bill approved this week Congress codified its role in overseeing the process of agency reorganization (and often related diminution of staffing levels). Some of the provisions would prohibit specific proposals or workforce cuts from taking place, while others simply demand congressional review and input.

At the Environmental Protection Agency, for example, lawmakers said in an explanatory statement they were rejecting Trump’s proposed cuts and not providing any funding for “workforce reshaping.” The measure would allow for just $1 million for reprogramming, which would include “proposed reorganizations, workforce restructure, reshaping, transfer of functions, or downsizing, especially those of significant national or regional importance, and include closures, consolidations, and relocations of offices, facilities, and laboratories.” Congress said it does not expect EPA to “consolidate or close any regional offices in fiscal year 2018.”

At the State Department, the bill would require the department’s inspector general to review the “redesign” at State and the Agency for International Development to ensure proper processes were used and the input of employees was included. State would also be required to report to Congress on any actions taken last year in response to Trump’s call for reorganization and subsequent guidance from the Office of Management and Budget. Congress said it expected State to maintain the foreign service and civil service staff levels on board as of Dec. 31, 2017.

The Education Department is directly blocked from decentralizing its budget office, which reportedly sparked dissension both within the agency and at the White House.“There remains concern that adequate information about and justification for its reorganization have not been transparently shared with Congress and stakeholders to be able to evaluate the changes being proposed, including the potential benefits or existing challenges they are meant to address,” lawmakers said.

The Food and Drug Administration, Commodity Futures Trading Commission and the rest of the Agriculture Department were warned to “be mindful” of the legislative branch’s role in setting funding levels for fiscal 2019.  Even though the Trump administration has instructed agencies to assume the drastic cuts proposed in the president’s budget would be implemented, Congress told agencies to hit the brakes.

“Therefore, the agencies should not presuppose program funding outcomes and prematurely initiate action to redirect staffing prior to knowing final outcomes on fiscal year 2019 program funding.”

A provision funding the departments of Commerce and Justice would specifically prohibit any preprogramming of funds to “reassign an employee or reorganize offices.” If those agencies were to issue a reduction in force, they must first provide 30-days notice to Congress.

The Homeland Security Department would need to provide lawmakers with 60-days notice if they follow through on reorganizing its headquarters.

OMB originally said agencies would make their reorganization and workforce reduction plans public in Trump’s fiscal 2019 budget. That document provided some details on agency plans when it was released in February, but promised more details in the president’s management agenda. The management agenda, released this week, also promised more details on the overhauls in the coming months. See Government Reorganization in the Dark for a discussion of how OMB has been hiding that information and has been sued for it.

As noted in that post, Rep. Elijah Cummings, D-Md., the top Democrat on the House Oversight and Government Reform Committee, has said the Trump administration’s proposals would amount to a “degradation of the federal workforce” that was occurring “in darkness.” He has called for hearings on the plans and attempted, unsuccessfully, to solicit them from OMB.

 

Small agencies killed in Trump’s 2017 “skinny budget’ are revived in Omnibus

According to articles in Government Executive today,  The 19 Agencies Trump Tried To Kill Aren’t Going Away and Omnibus Puts Kibosh on White House Efforts to Unilaterally Reorganize Agencies, Shed Workers, Congress has reasserted its authority and its standing as a co-equal branch of government.  A strong message is being sent to not only the President but also federal agencies and federal employees.

This post covers the The 19 Agencies Trump Tried To Kill Aren’t Going Away.

The President’s “skinny budget” released in March 2017 called for closing 19 small agencies to help offset a spending increase for the Defense and Veterans Affairs departments as well as some elements of Homeland Security. They were:

The African Development Foundation, an independent agency that establishes targeted development programs in underserved parts of Africa. It will receive $30 million through Sept. 30, 2019.
The Appalachian Regional Commission, an economic development agency created in 1965 to work in partnership with federal, state, and local government. It will receive $155 million, a rise of $3 million over its fiscal 2017 level.
The Chemical Safety Board, an independent reviewer of chemical industry accidents and regulations, will receive $11 million, the same as it received in 2017.
The Corporation for National and Community Service, which runs AmeriCorps/VISTA and other volunteer programs. It will receive $1.06 billion, a hike of almost $34 million, the bulk of it going to AmeriCorps, its largest program.
The Corporation for Public Broadcasting, which ensures Americans have universal access to public media’s educational and informational programming and services, will be fully funded at $445 million for both fiscal 2018 and 2019.
The Delta Regional Authority, a partnership that supports job creation and development in rural Mississippi and Alabama, will receive $25 million, a $10 million hike over 2017 funding.
The Denali Commission, which was created in 1998 to provide economic support throughout Alaska and in 2015 assigned to be a lead coordinating agency for relocating villages in rural Alaska that face environmental risks, will receive $30 million, double its 2017 budget. The commission’s federal co-chair, Joel Neimeyer, told Government Executive on Thursday that,

“With the pending decision by Congress to add an additional $15 million to the agency’s fiscal 2018 budget, it is clear that the legislative branch is now telling the commission to start implementing solutions to protect the built environment and carry out village relocations. The commission stands ready to transition to an implementing agency, and we are pleased that Congress holds this trust in our small independent federal agency.”

The Institute of Museum and Library Services, which enables museums and libraries to offer learning experiences for students and families, as well as to increase care for, and access to, the nation’s collections that are entrusted to museums and libraries by the public. It will receive $240 million, a hike of $9 million.
The Inter-American Foundation, created in 1969 to give grants that channel development assistance directly to the organized poor and “grass roots” in Latin America and the Caribbean. It will get $22.5 million through Sept. 30, 2019.
The Legal Services Corporation, created in 1974 to serve the legal needs of low-income Americans. It will receive $410 million, a hike of $25 million over fiscal 2017’s level.
The National Endowment for the Arts will get $152,849,000—a more than a $7 million increase.
The National Endowment for the Humanities will get $152,848,000—a more than a $7 million increase.
The Neighborhood Reinvestment Corporation, located in the Housing and Urban Development Department, is an independent organization created in 1977 that provides rental assistance to low-income Americans. It will receive $140 million, the same as 2017.
The Northern Border Regional Commission, a federal-state partnership for economic and community development in northern Maine, New Hampshire, Vermont and New York. It will receive a raise from $10 million in 2017 to $15 million.
The Overseas Private Investment Corporation, set up in 1971 to mobilize private capital to help solve critical development challenges and in doing so, advance U.S. foreign policy. It is authorized to spend up to $79.2 million for its administrative, noncredit account, a rise of more than $9 million over 2017’s level. That comes with an additional $20 million (double last year’s amount) for the cost of direct and guaranteed loans under the Foreign Assistance Act.
The United States Institute of Peace works with nongovernmental parties in conflict zones. It will receive $37,884,000 through Sept. 30, 2019, the same as last fiscal year.
The United States Interagency Council on Homelessness was created in 1987 to coordinate between 19 agencies to reduce homelessness. It will receive $3.6 million, the same amount it got in 2017.
The U.S. Trade and Development Agency, helps companies create U.S. jobs through the export of U.S. goods and services for priority development projects in emerging economies. It will receive $79.5 million through Sept. 30, 2019.
The Woodrow Wilson International Center for Scholars, which calls itself “the nation’s key nonpartisan policy forum for tackling global issues through independent research and policy dialogue, will receive $12 million through Sept. 30, 2019, a $2 million raise from last year’s level.
 

E-mails obtained through FOIA confirm Scott Pruitt’s direct hand in removal of EPA information

According to e-mails obtained by the Environmental Defense Fund (EDF) in response to a  FOIA request, EPA Administrator Scott Pruitt directly approved the removal of a number of pages about climate change from the EPA website that appears to the public. EDF has posted the released files.

The emails center on a website purge at EPA in April 2017, reported by Chris Mooney and Juliet Eilperin last summer. Along with pages about climate change and climate science, the purge removed the page about the Clean Power Plan. EDF had previously obtained and posted information about climate change removed from EPA’s website.

 

Government Reorganization in the Dark

Public Employees for Environmental Responsibility (PEER is suing the Office of Management and Budget for the submissions made by the public in response to an executive order signed by President Trump in March and ensuing guidance from OMB.  According to PEER (as reported by Government Executive) Mick Mulvaney, the OMB director, made a YouTube video inviting  American citizens to weigh in with ideas for “making the federal government more efficient, effective and accountable to the American people.” The video was implemented through a May 15, 2017 Federal Register notice inviting public comment on improvements to the organization and functioning of the Executive Branch.

OMB subsequently set up a website for the public to submit those ideas, with comments due by June 12th. OMB has averred that it had received more than 100,000 submissions and distributed them to relevant agencies. The website is not to be found — although it is a federal record; the link takes one to the bare bones OMB site.1

As Government Executive reported in December, agencies first turned in rough drafts of their plans to OMB in April, which were not made public. Efforts by Government Executive to obtain copies through Freedom of Information Act requests were denied, with the administration citing the deliberative process to prevent their release.

Agencies were required to turn in the final drafts of their reorganization plans in September 2017. Those submissions, according to guidance issued by the Office of Management and Budget in April, were required to include both short and long-term plans to cut the size of their workforces. As Government Executive noted in the December article, those plans have remained a secret, with administration officials saying they would only be made public when the White House releases its fiscal 2019 budget.

In a December 19, 2017 letter to OMB Director Mulvaney, Representative Elijah Cummings told the Director that, as he knows,2 the Oversight and Government Reform Committee (on which he is the Ranking Member) has oversight of the federal workforce and therefore of the agency reform plans. Mr. Cummings told Government Executive that such reforms should take place in full view of the public and with proper oversight.

Cummings asked for the documents by January 3; OMB did not respond to an inquiry on whether it would meet Cummings’ request.

A panel of the Senate Homeland Security and Governmental Affairs Committee has held two hearings to examine the reorganization plans. OMB declined to testify at both of those hearings, telling the subcommittee it was too early to offer its thoughts to Congress. Instead, leaders from various agencies gave broad outlines of their goals going into the process. According to Government Executive, federal employee representatives and some lawmakers bemoaned the lack of transparency in the reorganization process, including a failure to include ideas from front-line personnel.

1 If I manage to unearth the site, I will post the information.
2 As a previous Member of Congress, if nothing else.

Seven Words You Cannot Say on…a CDC budget

Those of us of a certain vintage remember George Carlin and “7 Words You Can’t Say On TV“.  Who would have imagined that our federal government would come up with its own list? For all the outrage that Mr. Trump and his supporters express about “political correctness,” i.e., calling people and communities by the names by which they choose to be called, the Washington Post reports that this administration has its own list of, quite literally, politically incorrect words and terms.

The forbidden words are “vulnerable,” “entitlement,” “diversity,” “transgender,” “fetus,” “evidence-based” and “science-based.”

On Thursday, 14 December 2017, senior CDC officials who oversee the budget told policy analysts at the Centers for Disease Control and Prevention in Atlanta of the list of forbidden words —that may not be included in any document related to the budget and supporting materials that are to be given to the CDC’s partners and to Congress, according to an analyst who took part in the 90-minute briefing.

Alison Kelly, a senior leader in the agency’s Office of Financial Services, told the analysts that “certain words” in the CDC’s budget drafts were being sent back to the agency for correction: “vulnerable,” “entitlement” and “diversity.” Kelly told the group the ban on the other words had been conveyed verbally. [Emphasis added]

In some instances, the analysts were given alternative phrases. Instead of “science-based” or ­“evidence-based,” the suggested phrase is “CDC bases its recommendations on science in consideration with community standards and wishes,” the person said. In other cases, no replacement words were immediately offered.

The article by

 

Deregulating Transparency— DOT and the Airlines v. Public


USA Today recently reported that—in the Administration’s effort to reduce regulations and their costs—the Transportation Department has abandoned two proposals from the Obama administration that aimed to provide air travelers with more information about fees on bags and other services before they buy tickets.

According to DOT Secretary Elaine Chao, “The department is committed to protecting consumers from hidden fees and to ensuring transparency. However, we do not believe that departmental action is necessary to meet this objective at this time. … Although we believe there would be benefits of collecting and publishing the proposed aviation data, the department also takes seriously industry concerns about the potential burden of this rule.”

The burdens on industry, that is.  According to USA Today, “most airlines said the costs providing the information would be burdensome and the information wouldn’t increase the transparency of pricing. Airlines also worried that the disclosures could require reporting of propriety information.”

In other words, as in most Republican administrations, asserted burdens outweigh public benefits from transparency and the ability to make informed choices.