In his memorandum, the President asserts that he has unspecified “core powers,“ which are being abused by law firms and attorneys. He fails to identify these powers and their source. Contrary to his assertion, under the Constitution the President possesses only clearly delegated power; while most of the federal power is delegated to Congress.
An earlier blog piece addressed the limited power conferred on the President by the Constitution of the United States.1 Two subsequent pieces reviewed the principle of separation of powers integrated into the Constitution. The first piece reviewed and rejected the assertion that the Constitution created a “unitary” executive branch.2 The second piece was a three-part analysis of the Constitution’s limited incorporation of the doctrine of separation of powers. That piece relied heavily on The Federalist to demonstrate not only that the notion of an unlimited executive power was contrary to the intent of the framers, but also that the doctrine of separation of powers itself was misunderstood by the proposed Constitution’s critics.3
In these and other blog pieces, I have avoided basing my presentations on the wisdom of the underlying presidential actions or on public policy or on political views–whether the President’s or mine. The matter submitted to the readership in this piece is whether the Presidential Memorandum entitled “Preventing Abuses of the Legal System and the Federal Court” violates the Constitution,4 particularly whether the instructions issued to the Attorney General and the Secretary of Homeland Security in that memorandum are unconstitutional.
The first three paragraphs of the President’s memorandum attempt to say why this memorandum is important. Whether violations that threaten national security, public safety, or election integrity are “especially important” compared to the other duties of lawyers is merely an opinion, an opinion entitled to respect when it comes from a president. But no one familiar with legal process–much less any American lawyer–would disagree that lawyers and law firms should obey the laws of the United States or should respect the rules governing lawyer conduct.
The President’s memorandum asserts that “recent examples of grossly unethical misconduct are far too common.” Yet that assertion is supported only by reference to a single incident. And even then, whether that incident involved conduct that was unethical is open to question.
The next paragraph claims–without factual substantiation–that the immigration system’s “constitutional and lawful bases” have been supplanted by “rampant fraud and meritless claims.” The President also asserts that “unscrupulous behavior by attorneys and law firms” have supplanted the President’s exercise of core powers under Article II of the Constitution.
This assertion, like others by the President, does not specify the provision of Article II that gives him this “core” power. The closest thing in Article II to a provision defining his power is that the Constitution empowers the President to require the written opinion of the principal officer of each of the executive departments on any topic related to their duties.5 His “for instance” assertion of an example is obscured by a descriptive sentence of over fifty words,6 riddled with unsupported conclusions. He goes on to assert, also without factual support, that “these fraudulent claims” impose an “enormous burden on the federal government.” And, he continues, that this “fraud in turn “undermines the integrity of our immigration laws and legal profession more broadly . . . .”
He then invokes the Federal Rules of Civil Procedure and the Model Rules of Professional Conduct, which he characterizes as being “long ignored” by attorneys and law firms, whether when litigating against the Federal Government or in “pursuing baseless partisan attacks.” He directs the Attorney General to seek sanctions against those who engage in “frivolous, unreasonable, litigation against the United States or in matters before executive departments and agencies of the United States. The Attorney General and the Secretary of Homeland Security are to “prioritize enforcement of their regulations governing attorney conduct and discipline.”7 And the Attorney General is to take “all appropriate action” to refer matters for disciplinary action, including consideration of the duties of law partners who supervise “junior” attorneys. She is also to consider “additional steps,” such as reassessment of security clearances and termination of contracts for which the relevant attorney has been hired.
Not satisfied with these threatened actions, the President directs the Attorney General and “any relevant senior executive official” to study litigation over the last eight years and make recommendations for misconduct during that period. The conduct of his personal lawyers goes unmentioned.
Most of this memorandum is obtuse, unsubstantiated political blather. Its quality and its potential deleterious effect on the rule of law or the practice of law are for others to criticize.8 Nothing in the Constitution prevents the President from making these allegations–indeed, the Constitution specifically protects him under the First Amendment. As poorly conceived and poorly written as it is, this memorandum is constitutional free speech. Whether it is coherent and rational, and whether it should be parsed and confronted by others who know the law, is beyond the scope of this blog.
About the Author: Don LeDuc is the retired president and dean of Cooley Law School. His book, Michigan Administrative Law, is revised and published annually by the West Group. He is a member of Scribes, the American Society of Writers on Legal Subjects, and received the Golden Pen Award from the Legal Writing Institute. This article is part of a multi-part series discussing the meaning of the U.S. Constitution's words.
1 See LeDuc, The Constitutional Powers of the President, Cooley Law School website.
2 See LeDuc, Separation of Powers, the “Unitary” Executive, and the Removal Power of the President, Cooley Law School website.
3 See LeDuc, The Constitution’s Limited Commitment to Separation of Powers, Cooley Law School website. The Federalist is a detailed justification of the proposed Constitution, written by three well-known founders of the country–Alexander Hamilton, James Madison, and John Jay.
4 The various documents and actions of the President can be found on Whitehouse.gov.
5 U.S. Const., Art II, Section 2, Clause 1. While this provision does not authorize the President to issue directions to these officers, that power seems to be clearly implied by the structure established in the Constitution.
6 This is one of several lengthy, poorly written and rambling sentences in this memorandum.
7 His meaning is unclear.
8 For instance, the response of Chief Justice Roberts constitutes a good start at framing the analysis of the President’s memorandum from the perspective of litigation and the rule of law.