Robert Delahunty and John Yoo suggested in a recent National Review essay that the 2016 election largely reflected the American public’s attitudes about the place of law in public life. American opinion about the behavior of public figures and the enforcement of the nation’s laws provoked considerable debate throughout the campaign. “Draining the swamp” during the first months of the Trump administration will generate renewed attention to the new Administration’s own conduct. Indeed, the role of law in public life will remain a dynamic factor during the early days of the Trump Administration, particularly given the challenges the President faces in distancing himself and his responsibilities as the Chief Executive from his financial enterprises and dealings, particularly with foreign governments.
There are five important ways that the law and legal institutions will be on the cutting edge of developments during the first days of the Trump presidency. Here are some developments to watch:
The Next Nominee for the Supreme Court. Obviously, this is the main event, both in substantive and political terms. President Trump’s announcement of his Supreme Court nominee, likely in the first weeks of his presidency, could emerge from the list of 21 potential candidates he identified during the presidential campaign. The Senate confirmation hearings and floor debate—which are expected to occupy several months of the Senate’s attention this spring—will become the first major clash of partisan interests on a range of controversial issues.
Whittling Down Judicial Vacancies. While public attention has focused on President Trump’s opportunity to recast the balance on the Supreme Court, the President could have greater immediate impact on the shaping of the federal district courts, where a large number of vacancies exist. Of 673 U.S. district court judgeships, 88—or 13 percent—will remain vacant on President Trump’s first day in office.
Same-party control of the White House could cause judicial vacancies to decline considerably during 2017, as President Trump nominates judicial candidates and the Republican-led Senate dispatches them through the turn-styles of confirmation. Some judicial nominees from states with home-state Republican Senators left in limbo at the end of the last Congress will see their nominations revived and fast-tracked, while work also proceeds on other vacancies to identify nominees. Republicans will now benefit from the Democrat-initiated rule change in November 2013 that requires only 51 approval votes on district and circuit court nominees. Republicans, with 52 votes in the chamber, will be able to secure the confirmation of most, if not all, of their district and circuit judicial nominees without the assistance of Senate Democrats.
DOJ Transformed. Sen. Jeff Sessions (R-AL), President Trump’s nominee to become Attorney General, is considered to hold a relative lock on confirmation, but will face extensive grilling during his confirmation hearings. Critics are ramping-up efforts to grill Sessions on his past and how he may reshape the authority and operation of the Department in a number of criminal and civil law enforcement areas, including immigration and civil rights. The Department’s responsibilities for overseeing police conduct in police departments could change dramatically.
Deregulating the Regulators. The implementation of candidate Trump’s pledge to repeal and replace the Affordable Care Act and rollback significant numbers of federal regulations in the agricultural, financial, environmental, and workplace sectors could represent one of the most sweeping assaults on the “administrative state” in a generation. Legal challenges to moves the Trump administration by supporters of the current rules will be prolific. Administrative implementation of rules changes will be considerable and demanding in the resources agencies will need to devote to deciding and explaining which rules are being set aside, as well as navigating through rules created by court mandate.
Ethics Conundrums. Perhaps no President in the modern era has faced greater complexities in distancing himself and his responsibilities as Chief Executive from his financial enterprises and dealings, particularly with foreign governments.
While government ethics rules for federal officials exempt the President from coverage, the President could face criticism and questions whether foreign payments to Trump-owned businesses constitute forbidden payments under the Emoluments Clause of the Constitution, which prohibits all federal officials from taking any an “emolument” of “any kind whatever” from a king, prince, or foreign state. How well Donald J. Trump insulates himself from appearances of conflicts of interest will remain an ambitious goal throughout his presidency.
Bruce Moyer is government relations counsel for the FBA. He also serves as counsel to the National Association of Assistant U.S. Attorneys. © 2017 Bruce Moyer. All rights reserved.