From Shriveled Enforcement to OLC Opinions, Trump Stench on Exec Branch Remains
Newsletter 110: Democrats require a new approach to appropriations and running the Department of Justice
It seems that each passing day brings another example of how chronic underfunding of government is threatening the Biden administration’s ability to make good on its promises to the public. On the campaign trail, for example, Biden pledged to hold polluters accountable. But, according to a new analysis from Public Employees for Environmental Responsibility (PEER), Environmental Protection Agency (EPA) referrals to the Justice Department fell to their lowest level in three decades in 2021 and were fully one-third lower than in 2020. A lack of capacity may also be undermining the EPA’s ability to quickly and effectively deploy new infrastructure funds for wastewater and drinking water infrastructure programs, lead pipe replacement, and cleanup of PFAS contaminants.
Of course, it’s not just environmental enforcement that’s under threat. In a recent blog, my colleague Toni Aguilar Rosenthal detailed how severe attrition has left the Department of Housing and Urban Development unable to fully or efficiently fulfill its responsibilities on fair housing enforcement, disaster relief, or homelessness assistance.
And my colleague Fatou Ndiaye just published a new piece on the Federal Housing Finance Agency’s persistent failure to maintain staffing levels sufficient to adequately perform its oversight responsibilities for the Government Sponsored Entities and Federal Home Loan Banks (that may sound dry, but those examinations have important implications for financial stability, multifamily housing policy, and individual borrowers).
Meanwhile, as we highlighted in a coalition letter last week, the Department of Justice’s Antitrust Division is not only suffering the effects of vacancies in its top ranks, but also of longer-running understaffing at all levels. In a recent piece for Politico Magazine, Ankush Khardori also suggested that the DOJ will need to devote more personnel and resources to its fight against corporate crime if its recently announced shift in strategy is to have actual teeth.
All of this should underscore that the country cannot afford to limp along under Trump-era funding levels any longer. We need an annual appropriations agreement that removes these long-running resource constraints and unleashes agencies to quickly and effectively advance the public interest.
Needless to say, not every broken promise can be chalked up to insufficient agency capacity. The glacial pace of de-Trumpification, for example, seems to be the product of a lack of will, not resources. My colleague Hannah Story Brown wrote in The American Prospect this week about how the DOJ’s Office of Legal Counsel (OLC) has only reversed 3 of the 48 opinions it released publicly during the Trump years (we cannot know the full number of opinions it rendered because by longstanding, sadly bipartisan practice it does not presumptively release them). Among those that are still on the books are an opinion stating that “the incoming president should be denied access to the outgoing president’s files on the presidential computer, and would need to request access from the National Archives and Records Administration (NARA),” one “affirm[ing] the immunity of Kellyanne Conway from compelled congressional testimony,” and another “undermining the independence of independent agencies,” to name a few. Under leadership that was remotely interested in actually restoring the Justice Department’s integrity, there is no question that each and every one of these would already have undergone a thorough review. After all, this is the Office that one former staff member described as “using the law to legitimize [Trump’s] lies.”
We wish we could say that we were surprised at this failure, but, in fact, it is wholly consistent with what we’ve come to expect from Attorney General Garland’s DOJ. It’s not just de-Trumpification either. The Justice Department continues to be a tepid advocate for, if not an outright obstacle to, progressive priorities. This week, alongside Education Department attorneys, for instance, it inexplicably chose to expend resources appealing a bankruptcy court’s ruling in favor of discharging a borrower’s student loan debt. And who can forget how it helped to greenlight massive gulf oil lease sales last year, despite its own legal analysis finding that the court ruling that supposedly required it actually did not? A federal judge canceled the resulting lease sales last week. Now, more than 70 groups are asking the administration not to appeal. It says a lot that that’s even a concern.
Three of Biden’s nominees to the Federal Reserve Board of Governors – Sarah Bloom Raskin, Lisa Cook, and Phillip Jefferson – will sit for confirmation hearings today. Judging by the tenor of the opposition so far, they are likely in for some truly hair-raising comments and lines of questioning. Ever since her nomination was announced, Lisa Cook, who would be the first Black woman to serve on the Board, has been facing “a racist smear campaign” targeting her credentials, qualifications, and the focus of her research. This is a well-trodden playbook for Senate Republicans (just look how they’re deploying precisely the same lines of attack to try to discredit Biden’s rumored Supreme Court picks). The real test will be whether moderate Democrats take the bait as they did with the similarly bogus attacks against Biden’s nominee to be the Comptroller of the Currency, Saule Omarova.
Sarah Bloom Raskin’s opponents are also lying about her record in an attempt to tank her nomination. My colleague Max Moran has been busy debunking their claims and uncovering the true origins of these barbs. Better Markets has also put together a terrific fact check.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
Garland Has Yet to De-Trumpify His Office of Legal Counsel
The Chamber Of Commerce Gives Cover To Scared Wall Streeters
Coalition Calls On Secretary Raimondo to Release Calendars
Capacity Shortfalls At The FHFA
Letter to Attorney General Merrick Garland Highlights Urgent Need for Resources in the Antitrust Division
Sabotaged HUD Must Rebuild to Fix The Housing Crisis
Multifamily Housing and the FHFA
Biden Moves To Block Student Debt Victory
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