Senator Jeff Sessions (R-AL) appears before the Senate Judiciary Committee in Washington during his confirmation hearing to be the next U.S. Attorney General, on Tuesday, January 10, 2017. (Photo: Diego M. Radzinschi/ALM)
The U.S. Department of Justice has a duty to enforce and defend federal laws—unless the agency can’t do so in a “reasonable way,” U.S. Sen. Jeff Sessions said Tuesday during his confirmation hearing to be U.S. attorney general.
Responding to U.S. Sen. Ben Sasse, R-Nebraska, about when it would be “legitimate” for the Justice Department to not defend a law, Sessions said laws “should be defended vigorously whether or not the solicitor general agrees with them or not, unless it can’t be reasonably defended.”
Sessions added: “And so sometimes you reach a disagreement about whether it’s reasonably defensible or not, but that’s the fundamental question. And the Department of Justice should defend laws that Congress passed unless they’re unable to do so in a reasonable way.”
Sessions didn’t name-drop any pending cases, but there are a few—including challenges to the Obama administration’s health care law and his executive action on immigration.
Then-Attorney General Eric Holder Jr. in 2011 drew criticism when he announced the Justice Department would stop defending a key component of the federal Defense of Marriage Act that it found unconstitutional.
“Any decisions at any level not to defend individual laws must be exceedingly rare,” Holder said later, explaining his rationale. “They must be reserved only for exceptional, truly exceptional circumstances. And they must never stem merely from policy or political disagreements—hinging instead only on firm constitutional grounds.”
Sasse, in his questions Tuesday, didn’t name any specific law. Or agency. But there’s a big dispute looming in federal court in Washington: the fate of the power structure of the Consumer Financial Protection Bureau. Sasse’s inquires appeared to be inspired, at least in part, by a looming battle between the bureau and President-elect Donald Trump.
On Monday, Sasse and U.S. Sen. Mike Lee, R-Utah, sent a letter to Vice President-elect Mike Pence calling for the incoming administration to fire Richard Cordray, the CFPB’s director, after the Jan. 20 inauguration. The senators urged Trump to seize on an appeals court ruling that struck down the CFPB’s structure as unconstitutional.
Writing for a three-judge panel in October, Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit said the president should be able to fire the CFPB director at will, rather than only for “inefficiency, neglect of duty or malfeasance in office.” Kavanaugh railed against the “massive, unchecked power” afforded to the CFPB director, describing Cordray as the “single most powerful official in the entire United States government” other than the president.
The dispute ultimately could reach the U.S. Supreme Court, and that’s where the agency and the U.S. Justice Department will be tasked with deciding whether and how to defend the constitutionality of the single-director power scheme.
Sasse and Lee see a more direct route for Trump to fire Cordray.
“Despite this appeal,” Sasse and Lee wrote, “the president retains constitutional authority to remove the director until a valid court order says otherwise. Like all government officials, the president is sworn to uphold the Constitution and is not duty-bound to respect unconstitutional statutes.”
Sasse, who referred to Cordray as “King Richard” in a press release announcing the letter, asked Sessions on Tuesday about his views on the role of independent agencies in the executive branch.
“And do you envision that you will be making any recommendations to the president to rein in independent agencies in an effort to preserve the constitutional distinction between the powers of Congress and the administrative responsibilities of the executive branch?” Sasse asked.
“That is a good question, kind of a historic question at this point in time, because it does appear to me that agencies oftentimes see themselves as independent fiefdoms,” Sessions said. “And sometimes you even hear the president complain about things clearly under his control.”