Can a President Amend Regulations by Executive Order?

Does the President have the authority to unilaterally amend the Code of Federal Regulations by executive order?

The question arises because executive order 13843 issued by President Trump on July 10 to modify the way administrative law judges are appointed also purports to directly amend three provisions of the CFR.

Ordinarily, such regulations can only be amended by a formal rulemaking procedure involving public notice and an opportunity for public comment. That was not done here.

So a new publication from the Congressional Research Service inquires into the scope of presidential authority to amend federal regulations.

The tentative CRS conclusion is that while an executive order may itself be exempt from the regular rulemaking procedures, any agency implementation of the president’s executive order that involves changes to federal regulations would still have to follow those notice and comment procedures. See Can a President Amend Regulations by Executive Order?CRS Legal Sidebar, July 18, 2018.

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Federal agencies disburse more than $100 billion each year in “improper payments” — meaning payments that should not have been made, payments for goods or services that were not received, payments in the wrong amount, duplicate payments, and so on. Efforts to reduce such unjustified expenditures have not been successful. A new report from the Congressional Research Service reviews the trends, and finds that “Over the period of FY2004 through FY2017… improper payments have totaled $1.3 trillion.” See Improper Payments in High-Priority Programs: In Brief, July 16, 2018.

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Other notable new or updated reports from the Congressional Research Service include the following.

Public Disclosure of Corporate Tax ReturnsCRS Insight, July 16, 2018 (“Granting access to corporate tax returns could help to educate the public and inform policymakers by showing what corporations pay in taxes and which tax incentives they benefit from.”)

Brett M. Kavanaugh: Selected Primary MaterialCRS Legal Sidebar, July 17, 2018

The Proposed Equal Rights Amendment: Contemporary Ratification Issues, updated July 18, 2018

The Black Lung Program, the Black Lung Disability Trust Fund, and the Excise Tax on Coal: Background and Policy Options, July 18, 2018

Military Commission Judges Do Not Have Unilateral Power to Punish for ContemptCRS Legal Sidebar, July 18, 2018

The Budget Control Act and the Defense Budget: Frequently Asked Questions, updated July 13, 2018

Cybersecurity: Data, Statistics, and Glossaries, updated July 16, 2018

The U.S. Trade Deficit: An OverviewCRS In Focus, July 18, 2018

Mexico’s 2018 Elections: Results and Potential ImplicationsCRS In Focus, July 17, 2018

China’s Actions in South and East China Seas: Implications for U.S. Interests–Background and Issues for Congress, updated July 17, 2018

U.S. Army’s Initial Maneuver, Short-Range Air Defense (IM-SHORAD) SystemCRS Insight, July 18, 2018

Tit-for-Tat Tariff Measures, and More from CRS

New and updated reports from the Congressional Research Service include the following.

Tit-for-Tat Tariff Measures and U.S. Trade Policy, CRS Insight, July 11, 2018

Renewable Energy and Energy Efficiency Incentives: A Summary of Federal Programs, updated July 11, 2018

Military Transition Assistance Program (TAP): An Overview, CRS In Focus, updated July 12, 2018

Risk and Needs Assessment in the Federal Prison System, updated July 10, 2018

Senate Judiciary Committee Hearings for a Supreme Court Nominee: Overview, CRS Insight, July 12, 2018

Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, July 11, 2018

Ethics in Intelligence, and More from CRS

What is the role of ethics in intelligence and at the CIA in particular?

“Some former employees and others with experience at the agency have been critical of CIA’s ethics program as focusing too much on legal compliance in a reactive, ad hoc manner that falls short of a comprehensive approach to ethics education at the CIA,” the Congressional Research Service said in a recent discussion of the topic.

But “Others are skeptical of introducing training on morality into what is often viewed as the inherently amoral environment of covert action or clandestine foreign intelligence.” See CIA Ethics Education: Background and Perspectives, CRS In Focus, June 11, 2018.

Other new and updated reports from the Congressional Research Service include the following.

United States Special Operations Command Acquisition Authorities, July 9, 2018

Defense Acquisitions: How and Where DOD Spends Its Contracting Dollars, updated July 2, 2018

Mexico: Organized Crime and Drug Trafficking Organizations, updated July 3, 2018

China-U.S. Trade Issues, updated July 6, 2018

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, July 6, 2018

The Army’s Modular Handgun Procurement, CRS In Focus, June 19, 2018

President Trump Nominates Judge Brett Kavanaugh: Initial Observations, CRS Legal Sidebar, July 10, 2018

Who Interprets Foreign Law in U.S. Federal Courts?, CRS Legal Sidebar, July 9, 2018

The Designation of Election Systems as Critical Infrastructure, CRS In Focus, July 6, 2018

Section 232 Investigations: Overview and Issues for Congress, July 5, 2018

The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress, July 5, 2018

Federal Quantum Information Science: An Overview, CRS In Focus, July 2, 2018

Justice Kennedy Retires, and More from CRS

With the announcement of Justice Kennedy’s retirement from the US Supreme Court, the Congressional Research Service issued several new and updated reports on the nomination process and related issues.

Justice Kennedy Retires: Initial Considerations for Congress, CRS Legal Sidebar, January 28, 2018

President’s Selection of a Nominee for a Supreme Court Vacancy: Overview, CRS Insight, June 27, 2018

Supreme Court Nomination: CRS Products, CRS Legal Sidebar, June 29, 2018

Other noteworthy CRS products published last week include the following.

Cyber Supply Chain Risk Management: An Introduction, CRS In Focus, June 29, 2018

Global Research and Development Expenditures: Fact Sheet, updated June 27, 2018

U.S. Research and Development Funding and Performance: Fact Sheet, updated June 29, 2018

Trade Deficits and U.S. Trade Policy, June 28, 2018

Organizing Executive Branch Agencies: Who Makes the Call?, CRS Legal Sidebar, June 27, 2018

Efforts to Preserve Economic Benefits of the Iran Nuclear Deal, CRS In Focus, June 27, 2018

Immigration, Trade, and More from CRS

During FY 2016, the Department of Homeland Security detained 352,880 noncitizens, the Congressional Research Service noted in a newly updated report, citing the most recent DHS statistics. See A Primer on U.S. Immigration Policy, June 22, 2018.

Other recently issued CRS reports include the following.

Enforcing U.S. Trade Laws: Section 301 and China, CRS In Focus, June 25, 2018

Debates over Exchange Rates: Overview and Issues for Congress, updated June 22, 2018

U.S. Global Health Assistance: FY2001-FY2019 Request, updated June 22, 2018

The G-7 Summit in Charlevoix, Canada: Changing U.S. Leadership in Global Forums, CRS Insight, June 25, 2018

The United Arab Emirates (UAE): Issues for U.S. Policy, updated June 22, 2018

Hemp as an Agricultural Commodity, updated June 22, 2018

CRS Previews Public Release of its Reports

The Congressional Research Service said this week that it will begin publishing some of its non-confidential reports on a publicly accessible congressional website by September 18, as required by the Consolidated Appropriations Act that was signed into law last March 23.

“For the initial public release, the Library will make available in PDF format all of CRS’s R-series of ‘active’ reports that were published since the enactment date, as well as the Appropriations Status Table,” CRS said in a new memorandum for congressional staff.

The “R-series” refers to the primary CRS reports that have a report number beginning with R. It does not include CRS Insights, Legal Sidebars, or In Focus reports.

Over time, older R-series reports as well as some other product lines will be added to the public collection, CRS said.

“The Library and CRS are additionally committed to presenting the full inventory of reports appearing on CRS.gov on the public website as soon as is practicable (with a full migration targeted for completion by spring 2019). After the R-series reports are published, the Library will work to make other written products, such as In Focus products, available.”

The public website, which is not yet live, will be at www.congress.gov/crsreports.

The official public versions of the CRS reports will be lightly redacted to exclude contact information for the CRS authors.

See Public Release of CRS Reports: FAQ for Congressional Staff, June 2018.

The pending policy change applies only to non-confidential CRS reports. Research projects that are performed for individual offices or on a confidential basis will not be posted on the public website.

In recent report language, the Senate Appropriations Committee directed CRS to perform outreach “to ensure that the Congressional community is aware that… longstanding confidentiality assurances will continue unchanged.”

The new FAQ fulfills that directive with a statement that “The law does not change the mission or focus of CRS. The law does not affect the confidentiality of congressional requests or responses (such as confidential memoranda). It does not allow congressional requests or confidential responses to be made available to the public.”

Since with few exceptions most non-confidential CRS reports are already in the public domain, the new policy is somewhat anti-climactic at this point. But it is fitting and proper that CRS reports should also be available on a congressional website.

Meanwhile, new and updated reports from the Congressional Research Service that have not yet been officially disclosed include the following.

Recent Violent Crime Trends in the United States, June 20, 2018

Indexing Capital Gains Taxes for Inflation, June 18, 2018

Renewable Energy R&D Funding History: A Comparison with Funding for Nuclear Energy, Fossil Energy, Energy Efficiency, and Electric Systems R&D, updated June 18, 2018

Lebanon, updated June 19, 2018

Economic and Fiscal Conditions in the U.S. Virgin Islands, June 20, 2018

The Purple Heart: Background and Issues for Congress, updated June 21, 2018

Military Enjoined from Transferring American ISIS Suspect to Foreign Country–at Least for NowCRS Legal Sidebar, June 20, 2018

Laws on Aliens at the Border, and More from CRS

“The situation at the border and U.S. immigration authorities’ response to it has prompted significant attention and, in some cases, confusion regarding the governing laws and policies,” the Congressional Research Service said with some understatement in a new brief.

The CRS document reviews the laws on admission and exclusion of aliens at the U.S. border, including detention, asylum, and treatment of unaccompanied children. See An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border, CRS Legal Sidebar, June 15, 2018.

Other new and updated publications from the Congressional Research Service include the following.

North Korea: Legislative Basis for U.S. Economic Sanctions, updated June 11, 2018

Ebola: Democratic Republic of Congo, CRS Insight, June 12, 2018

The Committee on Foreign Investment in the United States (CFIUS), updated June 19, 2018

Intelligence Community Spending: Trends and Issues, updated June 18, 2018

The Opioid Epidemic, and More from CRS

The annual number of drug overdose deaths in the United States involving opioids has more than quadrupled since 1999, a new report from the Congressional Research Service notes.

“CDC estimates that in 2016, more than 63,000 people died from a drug overdose, and more than 42,000 of these deaths involved prescription or illicit opioids.” See The Opioid Epidemic and the Food and Drug Administration: Legal Authorities and Recent Agency Action, June 5, 2018.

Other new and updated reports from the Congressional Research Service include the following.

Increase in Illicit Fentanyl Overdose Deaths, CRS Insight, June 6, 2018

Capital Markets, Securities Offerings, and Related Policy Issues, June 8, 2018

The Rise and Decline of the Alien Tort Statute, CRS Legal Sidebar, June 6, 2018

Intelligence Planning, Programming, Budgeting and Evaluation Process (IPPBE), CRS In Focus, May 30, 2018

Recent Trends in Active-Duty Military Deaths, CRS In Focus, June 1, 2018

Expedited Citizenship through Military Service, CRS In Focus, May 11, 2018

Egypt: Background and U.S. Relations, updated June 7, 2018

Department of State, Foreign Operations and Related Programs: FY2019 Budget and Appropriations, updated June 8, 2018

How to Develop and Write a Grant Proposal, updated June 7, 2018

Iran Asks US Supreme Court to Help Protect Its Assets

Iran’s central bank has filed a petition with the U.S. Supreme Court seeking to overturn a lower court ruling that would have transferred Iranian funds to the U.S. and made them potentially available for awards to victims of terrorism.

At issue is the legal interpretation of the Foreign Sovereign Immunities Act. A new brief from the Congressional Research Service provides background on the matter. See Iran’s Central Bank Asks Supreme Court to Consider Whether the Bank’s Assets Abroad are Immune from Attachment to Satisfy Terror Judgments by Jennifer K. Elsea, CRS Legal Sidebar, May 30, 2018.

Other new publications from the Congressional Research Service include the following.

Sidewalks, Streets, and Tweets: Is Twitter a Public Forum?CRS Legal Sidebar, May 30, 2018

(Robo)Call Me Maybe: Robocalls to Wireless Phones Under the Telephone Consumer Protection ActCRS Legal Sidebar, May 29, 2018

The Role of the Office of National Drug Control Policy (ONDCP)CRS Insight, June 1, 2018

The House Journal: Origin, Purpose, and Approval, May 31, 2018

Federal Grants and Loans for State and Local Emergency Communications Projects: Frequently Asked Questions, June 1, 2018

Federal Aviation Administration (FAA) Reauthorization Issues and Debate in the 115th Congress, May 29, 2018

U.S. Department of State Personnel: Background and Selected Issues for Congress, May 18, 2018

Withdrawal from Iran Nuclear Deal: A Legal Analysis

The US is no longer complying with the Iran nuclear deal and is poised to re-impose some previously lifted sanctions on Iran and its trading partners.

But the legal basis for that action is a bit murky and contested. A new analysis from the Congressional Research Service tries to make legal sense of what has happened.

“The legal framework for withdrawal from an international pact depends on, among other features, the type of pact at issue and whether withdrawal is analyzed under domestic law or international law,” the report says. See Withdrawal from the Iran Nuclear Deal: Legal Authorities and Implications, CRS Legal Sidebar, May 17, 2018.

Other new and updated reports from the Congressional Research Service include the following.

Iran’s Foreign and Defense Policies, updated May 23, 2018

Israel: Background and U.S. Relations In Brief, updated May 21, 2018

Bilateral and Regional Trade Agreements: Issues for Congress, May 17, 2018

Covert Action and Clandestine Activities of the Intelligence Community: Framework for Congressional Oversight In Brief, May 15, 2018

Military Construction: Process, Outcomes, and Frequently Asked Questions, updated May 16, 2018

The Federal Budget: Overview and Issues for FY2019 and Beyond, May 22, 2018

Violence Against Journalists in Mexico: In Brief, May 17, 2018

Venezuela’s 2018 Presidential Elections, CRS Insight, May 24, 2018

DACA Rescission: Legal Issues and Litigation Status, CRS Legal Sidebar, May 23, 2018

Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress, updated May 23, 2018

Advanced Pilot Training (T-X) Program: Background and Issues for Congress, updated May 21, 2018

The International Monetary Fund, updated May 24, 2018

Prescription Drug Monitoring Programs, updated May 24, 2018

Vehicle Fuel Economy and Greenhouse Gas Standards: Frequently Asked Questions, May 24, 2018

Is There Liability for Cross-Border Shooting?, CRS Legal Sidebar, May 22, 2018

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated May 24, 2018

Internet Freedom in China: U.S. Government Activity, Private Sector Initiatives, and Issues of Congressional Interest, May 18, 2018