//  3/30/17  //  Commentary

The Trump Administration really does not like to be questioned.  The Muslim travel ban?  “The president’s powers here are beyond question.”  Questions about Russia and Ukraine?  Thank you, but now’s not the time.  What’s Plan B for healthcare?  Don’t be “[s]o negative.”        

Perhaps no presidential administration likes to be questioned.  Yet when the Standing Rock Sioux Tribe, which has been joined in litigation by the Cheyenne River Sioux Tribe, challenged plans to lay the Dakota Access Pipeline (DAPL) through its treaty-recognized territory, the Obama Administration’s Army Corps decided to take a harder look at the pipeline’s impacts.  It didn’t take a court order to get the Administration to reconsider.  Even after prevailing against the Tribe’s motion for a preliminary injunction, the Corps committed to preparing an environmental impact statement (EIS) before granting an easement necessary for the pipeline’s completion.         

It’s almost impossible to imagine the Trump Administration similarly admitting its mistakes.  Within a few days of his inauguration, President Trump reversed course on DAPL with a memorandum calling for “expedited” resolution.  The Army Corps issued the easement without completing an EIS and without waiting the normal 14-day period after notifying Congress of its decision to issue an easement. 

Why the sudden shift?  The Obama Administration’s to blame; it was wrong to think an EIS was needed, the Army Corps has told a federal district court. 

Like litigation over the Muslim travel ban, the litigation over DAPL puts presidential power to the test of judicial review.  And like issues involving immigration, DAPL has developed against the backdrop of federal plenary power. 

“Plenary power” is a term of many meanings.  Among them is the idea, particularly prominent in matters involving American Indian Nations, immigrants, and the territories, that the political branches’ decisions are “not subject to be controlled by the judicial department of the government.”

Or so the U.S. Supreme Court opined in Lone Wolf v. Hitchcock.  Decided in 1903, Lone Wolf held that Congress could break the U.S.’s treaty promises and take Indian Nations’ property, notwithstanding the Fifth Amendment’s protections for property rights.  Lone Wolf’s holding has been limited, but never repudiated, and its gloss on plenary power reappears in Supreme Court opinions up through the present day

The legacy of plenary power persists, too.  The DAPL litigation concerns a pipeline crossing at Lake Oahe in North Dakota.  For all the Army Corps’ recent briefing suggests, the story of DAPL began a few years ago.  But as the Standing Rock Sioux Tribe has pointed out, the federal government’s jurisdiction over the pipeline crossing arises from a long history of broken treaty promises and taking of the Tribe’s lands.  The pipeline crosses the Standing Rock Sioux Tribe’s historically-recognized treaty lands and runs close by its current reservation.  An original proposal would have run the pipeline near Bismarck, North Dakota, a route deemed too risky because of the possibility of oil spills.  As rerouted, DAPL threatens the Standing Rock Sioux Tribe’s rights to water, to hunt and to fish, and to culture, and the rights of the Cheyenne River Sioux Tribe.

The Standing Rock Sioux Tribe’s suit therefore compels the Administration to answer some difficult questions about those rights.  Why, for instance, did the Administration brush aside a 2016 opinion from the Solicitor of the Interior concluding that the Army Corps had failed to comply with the federal government’s obligations to the Tribe?  The Solicitor has a special expertise in federal Indian law that the Army Corps lacks, and her “M-opinion” was a basis for the Obama Administration’s decision to take a harder look at DAPL. 

Is there any valid basis for the Trump Administration’s failure to consider its obligations as a trustee for Indian Nations, which the M-opinion emphasized?  Is there any indication that Trump or his advisors gave this question any consideration?

As I’ve said elsewhere, this is “administrative law 101”:  Agencies may not act arbitrarily and capriciously or contrary to law.  President Trump doesn’t have plenary power, however much he’d like to see that pipeline built.  Instead, black letter law instructs that federal plenary power in Indian Affairs is lodged with Congress. 

Under current law, there are few judicially-enforceable limitations on Congress’s plenary power in Indian affairs.  Congress may, if it speaks clearly, limit Tribal sovereignty and property rights.  But it can also protect those rights and direct administrative agencies to do the same.  And over the past fifty years, Congress has recognized and supported Tribal self-determination and Indian Nations’ water rights, hunting and fishing rights, and cultural property. 

Against the backdrop of Congress’s claims of plenary power over Indian affairs, judicial review of executive action is all the more important in federal Indian law cases.  Here, as elsewhere, Congress has delegated substantial authority to administrative agencies.  Those agencies do not enjoy a nearly-unreviewable plenary power.  They can be—and should be—questioned.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP