Tag Archives: rule of law

A Note on the Jorjani Confirmation Hearing

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The way Interior has acted under the Trump administration is the textbook definition of a political cartel, using state resources to help the special interests. And it sure looks to me like Mr. Jorjani has been a key member of the cartel.
-Senator Ron Wyden

Jorjani_ConfirmationWhen asked by Senator Manchin whether he could set aside political allegiances and provide “forthright legal analysis,” Daniel Jorjani offered assurances, but his confirmation hearing on Thursday kept circling back to the question.

Senator Cantwell said she was “trying to get an understanding of your commitment to what is the law and whether you will help follow the law. That’s the key thing I’m after.” Senator Wyden wanted the other nominee in the room, Mark Greenblatt, to give him written specifics about how as Inspector General at Interior he would maintain his independence, “and keep these political appointments”  — people “like Mr. Jorjani,” he added — “from interfering with protecting the public.”  Senator King wanted to know whether Jorjani has had any contact with people associated with Freedom Partners or the Koch Brothers since taking his post at Interior. Jorjani was not prepared to say he had not, and at the end of the hearing promised to go back and check.

When her turn came, Senator Hirono said it was “hard to believe” that Jorjani’s work for the Koch Brothers between 2009 and 2017 “does not influence [his] opinions.” She cited his M-Opinion on “incidental take,” according to which oil companies that inadvertently kill migratory birds (in a spill, for instance) will no longer face penalties or prosecution. Hirono wanted to know why Jorjani issued that opinion.

Hirono: A lot of these challenges under this law have come from, have been lawsuits involving the oil and gas industry. So who benefits most from your opinion that totally stopped prosecutions for incidental take under this law? What industry most benefits from your opinion?

Jorjani: I’m not aware of any particular industry that benefits from this. I’d like to think that he American people benefit from a restrained approach.

Hirono: Yeah, I’d like to think so too. But you cannot escape the conclusion that the people you used to work for before, the Koch Brothers, this is one of their biggest issues that they wanted to have done away with….. I would say the oil and gas industries are the biggest beneficiaries.

Senator Manchin summed up what appeared to be the skeptics’ view:

as Acting [Deputy Solicitor General] you came in and overturned 7 of the 8 [Tompkins] opinions….Those things were basically approved as the previous administration was outgoing. We found also these had been exhaustively studied and Ms. Tompkins was well regarded and following the rule of law. And in all honesty the observance I have is that basically that your political ideology overtook…the rule of law.

For his part, Jorjani made the striking claim that a directive from the president’s Chief of Staff authorized him “to review every regulation and every opinion,” including previous M-Opinions by his predecessor, Solicitor Hillary Tompkins.

The directive in question appears to be the Memorandum for the Heads of Executive Departments and Agencies issued by Reince Priebus on January 20, 2017, which put in place a Regulatory Freeze, affording Trump’s political appointees “the opportunity to review any new or pending regulations” and specifically any “questions of fact, law, and policy they raise.”

This is the first time I have heard anyone at Interior publicly and directly connect the overturning of Tompkins’ M-Opinions with this directive. Jorjani seems to have read it expansively, virtually as carte blanche.  He called it the “catalyst” for his multiple reversals of Tompkins. It now has a place on the Twin Metals timeline.

Read more about the Boundary Waters reversal here.

Ron Paul Didn’t Just…No, He Didn’t

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For a brief moment yesterday, I thought that Ron Paul had introduced one of the most brilliant and important pieces of legislation in the past decade, maybe in the past two or three decades.

That turned out to be my misreading. Paul’s American Traveler Dignity Act is a single paragraph, carefully crafted response to the stupid, abusive and bullying practices of the TSA. And I like that it puts the emphasis where it belongs, on human dignity – which is exactly what airport security takes away from the people it is supposed to protect, even if there is no touching of junk or x-rated x-ray imagery. Take off your shoes, take off your belt, stay in line, take orders, don’t joke, show your papers, give us your keys, give up your toiletries, answer the question, empty your pockets: submit.

The text of Paul’s Dignity Act (H.R. 6416) reads as follows:

No law of the United States shall be construed to confer any immunity for a Federal employee or agency or any individual or entity that receives Federal funds, who subjects an individual to any physical contact (including contact with any clothing the individual is wearing), x-rays, or millimetre waves, or aids in the creation of or views a representation of any part of a individual’s body covered by clothing as a condition for such individual to be in an airport or to fly in an aircraft. The preceding sentence shall apply even if the individual or the individual’s parent, guardian, or any other individual gives consent.

But that wasn’t exactly the way the bill was advertised, and this isn’t the language that got me excited. “Ron Paul,” wrote one blogger, “has introduced a bill saying the government can not do to us what would be illegal for us to do.” This turned out to be a paraphrase of something Paul himself said when summarizing the bill on Wednesday evening. “The bill I’ve introduced… It’s very simple. It’s one paragraph long. It removes the immunity of anybody in the Federal government that does anything that you or I can’t do.”

Now that would be a great act. Imagine a bill that stated, simply, that the Federal government and its agents cannot do anything citizens cannot do. Or, more precisely, that the Federal government and its agents are subject to the very same laws to which you and I are subject. That would be the equivalent of saying that the law applies equally to citizens and those elected to govern their affairs. The bill would have a great leveling effect, introducing what is, without exaggeration, a revolutionary idea – that all are equal before the law, that citizens can stand toe-to-toe with the people who govern them, and that government is no longer the refuge of tyrants and scoundrels.

But would anyone in Congress ever support such a revolutionary bill? As of this morning, just two Republicans, Walter Jones (North Carolina) and and John Duncan (Tennessee), had joined Paul as co-sponsors of his act. It seems unlikely anyone in the current Congress would want to support anything so radical as the measure I thought Paul was introducing.