Government Openness

“Deconstructing” the Administrative State – Part Two

Patrice McDermott Accountable Government, Government Openness

In a post explaining what conservatives mean by the ‘deconstructing’ phrase — and why they are so excited by the Trump administration’s personnel choices — Jonah Goldberg wrote on National Review (in February 2017):

Deconstructing the administrative state is a kind of nightingale’s song for many intellectual conservatives, particularly my friends in the Claremont Institute’s orbit. It’s been great fun watching mainstream journalists, who are not fluent in these things, talk about the administrative state as if they understand what Bannon means. The “administrative state” is the term of art for the permanent bureaucracy, which has come untethered from constitutional moorings (please read Phillip Hamburger’s Is Administrative Law Unlawful?, or Charles Murray’s By the People..). Most of the law being created in this country is now created on autopilot, written by unelected mandarins in the bowels of the government. It is the direct result of Congress’s decades-long surrender of its powers to the executive branch. The CIA is not the “deep state” — the FDA, OSHA, FCC, EPA, and countless other agencies are.

Goldberg goes on to note that “… any attempt to simply move the unlawful arbitrary power of the administrative state to the political operation of the West Wing will not be a triumph for liberty, it will simply amount to replacing one form of arbitrary power with another.”

Which, for me, raises the question if the power of the unelected corporate mandarins now taking over the Executive Branch is less “abitrary”?  Or less driven by “favored groups” and not imposing “heavy economic, political, and social costs on” the unfavored public?

Patrice McDermott

 

Amendment to Gut CBO — Make those unacceptable swamp numbers slow and unusable

Patrice McDermott Government Openness

Update The House Rules Committee is allowing the Griffith amendment to move to the floor for debate and a vote.

On July 24, Congressman Morgan Griffith (R-VA), along with Congressmen Jim Jordan (R-OH), Mark Meadows (R-NC), and Scott Perry (R-PA), submitted to the Rules Committee an amendment to abolish the Budget Analysis Division of the Congressional Budget Office (CBO) and transfer its duties to the Office of the Director.  The amendment was made to the Make America Secure Appropriations Act of 2018, through the use of the Holman Rule.  A separate amendment filed by Rep. Mark Meadows (R-N.C.) would also eliminate the same division and specify that the CBO instead evaluate legislation “by facilitating and assimilating scoring data” compiled by four private think tanks — the Heritage Foundation, the American Enterprise Institute, the Brookings Institution, and the Urban Institute.

During a Monday appearance at the National Press Club, Rep. Mark Meadows (R-NC), chairman of the Freedom Caucus, said “There’s plenty of think tanks that are out there. And so we ought to take a score from Heritage, from AEI, from Brookings, from the Urban Institute and bring them together for a composite score that would represent a very wide swath of think tanks and their abilities. We think that’s a pragmatic way to use the private sector and yet let Congress depend on a score that is accurate.”

During the first week in January, House Republicans reinstated the Holman Rule, an arcane procedural rule that empowers any member of Congress to propose amending an appropriations bill to single out a government employee or cut a specific program. It was first enacted in 1876 and rescinded in 1983, and was reinstated in January on a temporary basis.

 

Temporary restraining order and preliminary injunction denied – no Privacy Assessment of Trump Voter Fraud Collections

Patrice McDermott Government Openness

According to a report by Josh Gerstein of Politico,  U.S. District Court Judge Colleen Kollar-Kotelly denied a temporary restraining order and preliminary injunction the Electronic Privacy Information Center sought against the panel formally known as the Presidential Advisory Commission on Election Integrity. EPIC sought to force President Donald Trump’s controversial voter fraud commission (formally known as the Presidential Advisory Commission on Election Integrity) to conduct a privacy assessment before gathering data on millions of American voters.

The panel initially asked states to upload that data to a site hosted by the Defense Department, potentially implicating federal laws covering executive branch agencies. The panel is now having the information collected by the White House itself (see Trump voter commission to store data on White House computers under Pence staff direction), effectively avoiding the impact of those federal statutes.

In a 35-page opinion Monday, Kollar-Kotelly said the commission and a White House information technology office did not appear to qualify as federal agencies and therefore did not trigger the requirement for a privacy impact assessment: “Given the factual circumstances presently before the Court—which have changed substantially since this case was filed three weeks ago—Defendants’ collection of voter roll information does not currently involve agency action.”

The opinion states: “Defendants have represented that they are only collecting voter information that is already publicly available under the laws of the states where the information resides; and Defendants have clarified that such information, to the extent it is made public, will be de-identified. All of these representations were made to the
Court in sworn declarations, and needless to say, the Court expects that Defendants shall strictly abide by them.”

Kollar-Kotelly also noted that “to the extent that factual circumstances change – for example, of the de jure or de facto powers of the Commission expand beyond those of a purely advisory body – this determination may need to be revisited.”

Creation of New Secrets Drops in 2016 — But is All the News Good?

Patrice McDermott Government Openness, Secrecy

Appreciation to Steven Aftergood for his July 20 Secrecy News blog on the Annual Report to the President of the Information Security Oversight Office (ISOO).  Steve is the indispensable source for cogent analysis of national security (and other) information and this post draws on that.

The Good News
Designation of New Secrets at Record Low: The ISOO reports that, in 2016, 39,240 “original classification decisions” (new secrets) were generated.  As Aftergood notes, this is an all-time low: by comparison, more than 230,000 new secrets a year were being generated a decade ago. And, indeed, from1980 – when this record-keeping began — to 2012, the total number never dropped below 100,000.  Even given the caveats below, the record low level is likely to reflect a real reduction in the scope of national security secrecy in the Obama years.

Caveats: And, yet, Aftergood notes “the reported reduction in new secrets cannot bear too much interpretive weight. The figures cited by ISOO represent a compilation of dozens of estimates provided by individual agencies, based on sampling methods that are inconsistent and not always reliable.”  Still, one can assume “that the uncertainties and the ambiguities in the data have been more or less constant over time.”

Critically, “this statistical approach to secrecy oversight implies that all classification decisions are of equal significance. In actuality, some secrets may be of profound importance — politically, morally, historically, or otherwise — while many other secrets (such as administrative or technical details) will have little or no public policy interest.”

Classification Challenges: Decisions to classify information often involve subjective judgments about the requirements of national security and the potential of particular information to cause damage, leading to disputes inside the government. Authorized holders of classified information who believe that the information is improperly classified, can file classification challenges within the system. As Aftergood points out, “If such challenges could be promoted and accepted as a routine element of classification practice, they could serve to invigorate classification oversight and to provide an useful internal self-check.”

ISOO reports 954 such classification challenges in 2016 — about the same number as in 2015. Of these challenges, 684 (71.70 percent) were fully affirmed at their current classification status with 167 (17.50 percent) being overturned either in whole or in part, and 103 (10.80 percent) challenges remaining open. Aftergood notes that this compares to over 40% that were overturned in 2015.

According to ISOO, the Department of Defense (DoD) historically reports the largest number of formal classification challenges, the majority of which (496) come from the U.S. Pacific Command. Only a single one emerged from the Department of Justice

Caveats: ISOO found that about a quarter of all agencies do not even have a classification challenge program, though they are supposed to.

The Bad News

Derivative Classification Increase and Data Accuracy Questionable:  Executive branch agencies reported 55,206,368 derivative classification decisions; a 5 percent increase from FY 2015. ISOO notes, not for the first time, that the data concerning derivative classification continues to be problematic for agencies to capture and ISOO to analyze accurately. Agencies estimate the number of these decisions based on established sampling methods.

Classification Costs at a Record High

According to ISOO, the annual costs incurred by the classification system reached record high levels in 2016: “The total security classification cost estimate within Government for FY 2016 is $16.89 billion,” ISOO reported, compared to $16.17 billion the year before. Classification-related costs within industry were an additional $1.27 billion.”

The Mixed News

ISOO director Mark A. Bradley, whose tenure as director began this year, told the President that in the next reporting cycle, “ISOO will focus on improving our methodology in data collection and will begin planning and developing new measures for future reporting that more accurately reflect the activities of agencies managing classified and sensitive information.” Regrettably, this is a commitment also made previously in a better budget (and possibly political) climate: on May 23rd, the Administration released a Presidential Budget Request for Fiscal Year 2018 that would cut funding for the National Archives and Records Administration by $16.6 million.

The Administrative Procedure Act — Part of the Swamp or Moat?

Patrice McDermott Accountable Government, Government Openness

Earlier this month on Who.What.Why, Christine Capozziello outlined several lawsuits that have been brought against federal agencies on the basis of violation of the Administrative Procedure Act (APA).  Before your eyes completely glaze over, please note that the Freedom of Information Act amended the APA.

Capozziello asks, “What do the Department of Energy, the Department of Education, and Environmental Protection Agency have in common? They’ve all faced lawsuits for putting the brakes on Obama-era regulations.” Each of the agencies is being sued on the grounds that argues that the delay violates the Administrative Procedure Act (APA).

In April, New York Attorney General Eric Schneiderman sued the Department of Energy; a total of six Obama-era energy efficiency standards were delayed and Schneiderman argued that the APA had been violated.

The same month, the Department of Labor came under fire for delaying a long-awaited rule that would significantly decrease the permissible exposure limit to silica dust for construction workers.

In early July, a federal court cancelled the EPA’s attempt to delay implementation for new regulations on methane emissions. In the same week, the attorneys general from 18 states and Washington D.C. sued Education Secretary Betsy DeVos for delaying borrower defense rules that were scheduled to take effect on July 1. In the same week, a federal court cancelled the EPA’s attempt to delay implementation for new regulations on methane emissions.

Those who wish to see the “Administrative State” dismantled likely see the delays as a needed push-back against the economic, political, and social costs on individuals and businesses by favored groups [see July 10 post]. Others see the regulations as the moat protecting those with less — or no — power against powerful individuals and businesses.

Understanding the Process of Deconstruction

Patrice McDermott Accountable Government, Government Openness

The Environmental Law Institute (ELI) has issued a series of short “fact sheets,” to aid understanding of the legal mechanisms and processes that the White House, federal agencies, and Congress are considering as a means of changing the regulatory approach to environmental, natural resources, and health and safety standards and safeguards.

Rather than re-invent a wheel that has been already well-designed and well-implemented, a number of them are provided here.  My intent is to help readers understand the processes that can and, in some cases, must be followed to do away with public protections.

Each of the linked sheets addresses a specific legal tool or pathway that could be used to change existing environmental — and other — protections. They assume the reader has some familiarity with the federal regulatory landscape, but no particular legal or technical background. Each fact sheet identifies the relevant actors, describes the applicable procedures, discusses key features of each procedure, and opportunities for public engagement. The  information is current as of March 21, 2017. Where relevant, the fact sheets highlight opportunities for stakeholder engagement that are specific to individual processes. The links (in process..) below do not include all the fact sheets; see Regulatory Reform in the Trump Era for more.

1: Reversing or Revising Executive Orders and Actions; 2: Undoing Presidential Actions Protecting Public Lands and Resources; 3: Fast-Tracking Projects That Require Federal Approval; 4: “Cancelling” the Paris Agreement on Climate Change; 5: Reversing or Revising Agency Regulations, Generally; 7: Implementing the New “Two-for-One” Executive Order on Federal Regulations; 12: Subjecting Agency Regulations to Additional Cost-Benefit Analysis; 13: Enacting New Procedures for Federal Regulation

Nominee for Administrator of OIRA and “the Administrative State”

Patrice McDermott Accountable Government, Government Openness

Neomi Rao, the nominee for Administrator of the Office of Information and Regulatory Affairs, comes from founding the Center for the Study of the Administrative State at George Mason University.  The home page for the Center has a good summary of the arguments put forward about the ‘Administrative State’ by proponents of its dismantling:

Problems of administrative accountability occur in all three branches of the federal government.

  • Congress often delegates open-ended authority to agencies, but manages waivers and exemptions for its favored groups.
  • Executive Agencies often seize broad authority from open-ended statutes, regulating through informal mechanisms, and imposing requirements through consent decrees and litigation threats.
  • The Judiciary has posed few barriers to this expansion, because current judicial doctrines require significant deference to agency interpretations.

Administration increasingly occurs in informal and unorthodox ways, allowing for the growth of the federal government outside the checks and balances of the Constitution. In practice, compliance with regulatory requirements imposes heavy economic, political, and social costs on individuals and businesses.

The Senate is expected to approve Ms. Rao’s nomination today.  For more background, see Steve Eder’s article in Sunday’s New York Times. UPDATE: Rao was confirmed by the Senate on 10 July 2017.

Prosecution under the Espionage Act — What is “National Defense”Information?

Patrice McDermott Government Openness

On June 5, 2017, a criminal complaint was filed in the Southern District of Georgia charging Reality Leigh Winner, 25, a federal contractor from Augusta, Georgia, with removing classified material from a government facility and mailing it to a news outlet, in violation of 18 U.S.C. Section 793(e),  more generally known as the Espionage Act.

The critical questions that we should be asking the DOJ prosecutors in regard to the alleged disclosures by Reality Winner are:

Is the information “national defense” information; what does that mean?  Is there real harm to national security — and how is that defined? Was there criminal intent in the disclosure? Who decides?

According to Deputy Attorney General Rod J. Rosenstein, “Releasing classified material without authorization threatens our nation’s security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.”

The repeated use of the term ‘classified’ is of interest here.

The Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) and under which Ms. Winner has been indicted do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information. Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law.

Our modern classification regime postdates the Act by over 30 years. And yet the indictments and prosecutions under the Act in recent times all have to do with ‘classified information.’  Not, one should note, properly-classified information – which is what the Executive Order says.

The Espionage Act was at the center of the Pentagon Papers case, decided in 1971. Daniel Ellsberg, who leaked the papers, and an associate were tried under the statute, but the judge declared a mistrial, so the case never got to the jury.  The Supreme Court never squarely confronted the frontier question – When is a willful leak “prejudicial to the safety or interest of the United States”?

Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that, in order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

According to legal experts on classified information and on the Espionage Act, the Supreme Court seems satisfied that national security is a vital interest sufficient to justify some intrusion—at least with respect to federal employees — into activities that would otherwise be protected by the First Amendment.  Although the Court has not held that government classification of material is sufficient to show that its release is damaging to the national security, it has seemed to accept without much discussion the government’s assertion that the material in question is damaging.  (Criminal Prohibitions…, p. 19)

Thus, it is unlikely that a defendant’s bare assertion that information poses no danger to U.S. national security will be persuasive without some convincing evidence to that effect – proving a negative, or proof that the information is not closely guarded by the government. Rather, the fact of government classification will likely “serve as strong evidence to support that contention, even if the information seems relatively innocuous or does not contain much that is not already publicly known.” (Criminal Prohibitions…, p. 16)

How does the current Executive Order on National Security Classification, E.O. 13526, talk about information that needs protection? It notes in the introductory material, “… throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.  Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.”

As CRS has noted, barring such a showing, the Espionage Act become a means to punish whistle-blowers who reveal information that poses more of a danger of embarrassing public officials than of endangering national security. (Criminal Prohibitions…, p. 19)  To which many would say, “Exactly…”

Patrice McDermott

Trump voter commission to store data on White House computers under Pence staff direction

Patrice McDermott Government Openness

What could possibly go wrong with this?  According to the Washington Post, on 7 July the Trump administration told a federal judge that it plans to keep voter roll data it has requested from all 50 states and the District on White House computers under the direction of a member of Vice President Pence’s staff.

The disclosure of the White House role came in a government filing required in a lawsuit by the Electronic Privacy Information Center, a watchdog organization that has asked a federal judge in Washington to block the requests for voter data until the impact on Americans’ privacy can be fully assessed.

A decision on the request for a temporary restraining order by U.S. District Judge Colleen Kollar-Kotelly is expected as early as Friday afternoon.

Spencer Hsu reports that the May executive order creating the Presidential Advisory Commission on Election Integrity stated that the panel would be funded and staffed through the General Services Administration — a federal agency subject to privacy requirements. That arrangement has shifted: “At this time, there are no plans for the General Services Administration to collect or store any voter registration or other elections-related data for the Commission,” Kobach said in response to questions from the court.

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NO DATA. NO CHANGE.®

Patrice McDermott Government Openness

“You can’t change what you can’t see.” A new nonprofit, Measures for Justice is gathering data from around the country to allow citizens to compare and contrast their local justice systems with those of other jurisdictions. This sort of national data has been largely missing from policy debates over justice reform. See Beth Schwartzapfel’s (The Marshall Project) report about what she calls a “video game for criminal justice nerds.”

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