Senate Judiciary Members: Is DOJ Doing Its Job to Review Trump’s Executive Orders?

Washington, DC – Members of the Senate Judiciary Committee want to know whether the Justice Department lawyers charged with ensuring that the President is following the law are actually reviewing Donald Trump’s executive actions.  On Friday, when asked if its Office of Legal Counsel (OLC) was performing its duty to review the “form and legality” of executive orders and proclamations, the Justice Department responded “no comment.”  While subsequent reports have suggested OLC may have reviewed at least some of Trump’s executive orders, all Democratic members of the Senate Judiciary Committee are writing to Acting Attorney General Sally Yates today seeking clarification of the ambiguous statement and noting that, “In the vast majority of cases, the answer to this question should be a straightforward ‘yes.’”

“We need an independent Department of Justice to serve as a bulwark against rash and illegal executive actions and flagrant disrespect of our judicial system.  It is our hope, and expectation, that the Department will continue to serve this role,” the Senators write. 

Reports have indicated that the executive order signed Friday banning immigration from certain Muslim countries, and even disrupting return of fully legal immigrants over the weekend, was not reviewed by OLC.  Several courts imposed stays of the executive order after numerous challenges to its legality. 

Full text of the letter is below.  A PDF copy will be available upon request.

January 30, 2017

The Honorable Sally Yates

Acting Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

Dear Acting Attorney General Yates,

As members of the Senate Judiciary Committee, we write to express concern about the Department of Justice’s ambiguous response to inquiries about the Department’s role in reviewing the legality of President Trump’s recent executive orders and memoranda. On Friday, the press reported that the Department had “no comment” when asked whether its Office of Legal Counsel (OLC) had reviewed any of the executive orders issued by the new Administration to date.  In the vast majority of cases, the answer to this question should be a straightforward “yes.”

As you are well aware, the Department of Justice’s website states that:

“All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President’s formal approval.”

In addition, under Executive Order 11030 on the “preparation, presentation, filing, and publication of Executive orders and proclamations,” a president “shall” submit proposed executive orders and proclamations to both the Office of Management and Budget and the Attorney General, who reviews the materials for both “form and legality.”

Several of the executive orders and memoranda issued this past week, including those relating to deportation priorities and “sanctuary cities,” have already been questioned by local law enforcement officials because of their vagueness, negative impact on public safety, and potential conflict with legal precedent. One of them has already been stayed by a Federal court, after causing damage to families around the country and our standing around the globe. 

The American public has the right to know that the White House is following the long-standing and sensible practice that new mandates affecting their lives and communities have been deemed legal by the Justice Department.  If, on the other hand, the Administration has chosen to deviate from these well-established norms, the public has the right to know that, too.

Based on our understanding, the President has issued the executive orders and memoranda listed below since January 20^th.  Given the scope and significance of many of these, we ask that you provide the following information by no later than February 1, 2017:

• Identify which orders and memoranda listed below, or issues subsequent to the date of this letter, were reviewed by OLC before they were issued and which were not;
• Advise whether, to your knowledge, Executive Order 11030 remains in effect. 
• For orders issued through a process that failed to comply with 1 C.F.R. Part 19, advise what legal effect, if any, they have;
• Advise whether the procedure followed with respect to the executive orders and memoranda listed reflects a change of Department policy or practice and describe what the policy or practice of the Department will be going forward;
• Advise whether OLC has advised the Department of Homeland Security or any other federal agency on the meaning of any court order staying the President’s January 27, 2017, order related to the entry of certain persons into the United States; and
• Advise whether OLC has advised the Department of Homeland Security or any other federal agency with respect to the legality of failing to comply with court orders related to that executive action.

We need an independent Department of Justice to serve as a bulwark against rash and illegal executive actions and flagrant disrespect of our judicial system.  It is our hope, and expectation, that the Department will continue to serve this role. 

Executive Orders:

1. Executive Order: Reducing Regulation and Controlling Regulatory Costs (January 30, 2017)
2. Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States.  (January 27, 2017)
3. Executive Order: Border Security and Immigration Enforcement Improvements (January 25, 2017)
4. Executive Order: Enhancing Public Safety in the Interior of the United States (January 25, 2017)
5. Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
6. Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal (January 20, 2017)

Memoranda:

1. Presidential Memorandum Organization of the National Security Council and the Homeland Security Council (January 28, 2017)
2. Presidential Memorandum Plan to Defeat the Islamic State of Iraq and Syria (January 28, 2017)
3. Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
4. Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
5. Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
6. Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
7. Presidential Memorandum Regarding the Hiring Freeze  (January 24, 2017)
8. Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement (January 24, 2017)
9. Presidential Memorandum Regarding the Mexico City Policy (January 23, 2017)
10. Memorandum for the Heads of Executive Departments and Agencies (January 20, 2017)

###