28 U.S.C. 530D

28 U.S.C. 530D

(a) Report.—

(1) In general.— The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice—

(A) establishes or implements a formal or informal policy to refrain—

(e) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law [1] whose enforcement, application, or administration is within the responsibility of the Attorney General [2] or such officer on the grounds that such provision is unconstitutional; or

(ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer;

(B) determines—

(e) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law; [3] or

(ii) to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision; [4]or

(C) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action—

(e) against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000, excluding prejudgment interest; or

(ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order (or pursuant to any modification of an agreement, consent decree, or order) that provides injunctive or other non-monetary relief that exceeds, or is likely to exceed, 3 years in duration: Provided, That for purposes of this clause, the term “injunctive or other non-monetary relief” shall not be understood to include the following, where the same are a matter of public record—

(e) debarments, suspensions, or other exclusions from Government contracts or grants;

(II) mere reporting requirements or agreements (including sanctions for failure to report);

(III) requirements or agreements merely to comply with statutes or regulations;

(IV) requirements or agreements to surrender professional licenses or to cease the practice of professions, occupations, or industries;

(V) any criminal sentence or any requirements or agreements to perform community service, to serve probation, or to participate in supervised release from detention, confinement, or prison; or

(VI) agreements to cooperate with the government in investigations or prosecutions (whether or not the agreement is a matter of public record).

(2) Submission of report to the congress.— For the purposes of paragraph (1), a report shall be considered to be submitted to the Congress if the report is submitted to—

(e) the majority leader and minority leader of the Senate;

(B) the Speaker, majority leader, and minority leader of the House of Representatives;

(C) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of the Committee on the Judiciary of the Senate; and

(D) the Senate Legal Counsel and the General Counsel of the House of Representatives.

(b) Deadline.— A report shall be submitted—

(e) under subsection (a)(1)(A), not later than 30 days after the establishment or implementation of each policy;

(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination; [5] and

(3) under subsection (a)(1)(C), not later than 30 days after the conclusion of each fiscal-year quarter, with respect to all approvals occurring in such quarter.

(e) specify the date of the establishment or implementation of the policy described in subsection (a)(1)(A), of the making of the determination described in subsection (a)(1)(B), or of each approval described in subsection (a)(1)(C);

(2) include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination, [6] and the identity of the officer responsible for establishing or implementing such policy, making such determination, or approving such settlement or compromise), except that—

(e) such details may be omitted as may be absolutely necessary to prevent improper disclosure of national-security- or classified information, of any information subject to the deliberative-process-, executive-, attorney-work-product-, or attorney-client privileges, or of any information the disclosure of which is prohibited by section 6103 of the Internal Revenue Code of 1986, or other law or any court order if the fact of each such omission (and the precise ground or grounds therefore) is clearly noted in the statement: Provided, That this subparagraph shall not be construed to deny to the Congress (including any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may seek, subsequent to the submission of the report; and

(B) the requirements of this paragraph shall be deemed satisfied—

(e) in the case of an approval described in subsection (a)(1)(C)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the legal and factual basis or bases for the settlement or compromise (if not apparent on the face of documents provided); and

(ii) in the case of an approval described in subsection (a)(1)(C)(ii), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the injunctive or other non-monetary relief (if not apparent on the face of documents provided); and

(3) in the case of a determination described in subsection (a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of the proceeding, suit, or action.

(d) Declaration.— In the case of a determination described in subsection (a)(1)(B), the representative of the United States participating in the proceeding shall make a clear declaration in the proceeding that any position expressed as to the constitutionality of the provision involved is the position of the executive branch of the Federal Government (or, as applicable, of the President [7] or of any executive agency or military department).

(e) Applicability to the President and to Executive Agencies and Military Departments.— The reporting, declaration, and other provisions of this section relating to the Attorney General and other officers of the Department of Justice shall apply to the President (but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order), to the head of each executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States Code) that establishes or implements a policy described in subsection (a)(1)(A) or is authorized to conduct litigation, and to the officers of such executive agency.

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28 U.S.C. 530d and the Walker Lawsuits

28 U.S.C. 530d requires that the Attorney General produce a report to the Congress of the United States regarding the lawsuits of Walker v United States and Walker v Members of Congress as the Attorney General took the legal position in those lawsuits of advocating Congress opposing obeying the law of the Constitution. If the Attorney General takes actions described in either sections (a)(1)(A) or (a)(1)(B) 28 U.S.C. 530d mandates he is obligated to submit a 530d report to Congress. The actions taken by the Attorney General in the two lawsuits qualify under both sections. The notes below explain the reasons why 28 U.S.C. 530d requires this report be written in the case of the Walker lawsuits. The reason both lawsuits are mentioned is while the Attorney General may have been able to avoid writing a 530d report for Walker v Members of Congress by rationalizing it dealt with income tax law (when it did not), Walker v United States contained no other subject except the issue of an Article V Convention call by Congress. Therefore, a 530d report detailing who, when and why Congress can refuse to obey the law of the Constitution must exist under requirement of federal law.

Links to sources for the 530D Report may be found here.

[1] As the Constitution is “supreme law” such law would qualify under the term “other law.” Thus, where the issue of disobedience to that supreme law was the subject of trial in both Walker suits, the law demands the Attorney General write a report on this.

Further, Walker v Members of Congress asserted voluntary and deliberate violations by members of Congress to numerous federal criminal statutes including violations of federal income tax law and violation of oath of office. As the Attorney General refused to enforce these criminal laws when, by actual definition of the words used in the law, the members of Congress violated them, a report under 28 U.S.C. 530d is required to be written by the by the Attorney General to Congress explaining this policy to refrain from enforcement.

[2] As with all employees of the government, support of the law of the Constitution is the sworn duty of the Attorney General and all officers of the Department of Justice (DOJ). Therefore the enforcement of the law of the Constitution as well as federal criminal law “is within the responsibility of the Attorney General.” As the public record that the Attorney General refrained from enforcing the law of the Constitution as well as federal criminal law, the law mandates a report explaining this policy.

[3] As the government’s position in both lawsuits was to challenge Mr. Walker’s legal right to bring such suits rather than acknowledge or their duty of compliance to the law of the Constitution, the government argued “affirmatively” or presented an affirmative defense. The department never challenged any fact or law asserted by plaintiff Bill Walker in either lawsuit as untrue. This included the asserted fact a convention call is “peremptory” on the part of Congress thus defeating any objection by the government whatsoever. As the “constitutionality” of the Article V Convention clause, that is the obligation of Congress to obey the law of the Constitution, was the sole issue before the court in both lawsuits, it is obvious the “constitutionality” of the Article V Convention clause was contested. As such, 28 U.S.C. 530d mandates that the Attorney General was required to report to Congress on this government determination.

[4] The public record is distinct. Acting on instructions from the Attorney General the DOJ refrained “from defending or asserting in the judicial proceedings” in both Walker lawsuits the “constitutionality of the provision” of Article V of the Constitution (other law) and determined “not to appeal or request review of any judicial or other determination adversely affecting the constitutionality of any such provision.” Obviously, allowing Congress to disobey the law of the Constitution for any rationale “adversely affects the constitutionality” of Article V where evidence exists obedience by Congress to the clause is “peremptory.” This law presumes the Attorney General will act to preserve and enforce constitutional clauses, not find ways to get around them. Thus, when the DOJ did not defend Article V nor appeal a ruling that adversely affected it, 28 U.S.C. 530d requires the Attorney General submit a report on this policy decision to Congress.

[5] 28 U.S.C. 530d is clear. In December, 2000 and again on January 2, 2005 Mr. Walker filed his lawsuits, Walker v United States and Walker v Members of Congress respectively. Under the terms of this law, a report required by subsections (a)(1)(A) (a)(1)(B) must be sent to Congress “within 30 days” of those filings or “as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding.” In the instance of the Walker lawsuits, the intervention of Congress was for the members under 2 U.S.C. 118 and other applicable federal law and House or Senate Rules to instruct their respective counsels to affirmatively contest obeying the law of the Constitution by instructing the DOJ to represent them to oppose the Walker lawsuits. These federal laws and rules forbid independent action by the counsels without their respective house approvals and require a 530d report be submitted to them regarding this decision.

[6] The language of subsection (c) is self explanatory. Any 530d report to submitted to Congress as required by 28 U.S.C. 530d shall “specify the date of the establishment or implementation of the policy or the determination, i.e., the date Congress decided they had the right to disobey a clause of the Constitution” and a “complete and detailed” statement “of the reasons for the policy or determination” and finally the identity of the officer responsible for establishing or implementing such policy. In popular language, the report provides the “smoking gun” of the decision by Congress to refuse to obey the law of the Constitution and call an Article V Convention as specified in that law. The report requires full information as to when this decision was made, why it was made and who made it.

[7] This section of 28 U.S.C. 530d dictates if the government of the United States asserts an affirmative defense in a lawsuit where the constitutionality of a law is involved (in this case the law of the Constitution itself and Congress’ obligation to obey it) the Attorney General of the United States is required to state that any position taken in that lawsuit which opposes the constitutionality of that law is the position of the executive branch of the Federal Government, or as applicable, of the President.

The government’s affirmative defense in both Walker lawsuits can be summarized as follows: “Mr. Walker lacks standing, therefore we can disobey the law of the Constitution.” Its affirmative defense stated Coleman v Miller was an analogous decision allowing Congress to have “exclusive” control of the convention method of amendment, saying “[t]he United States submits [that]... logic dictates that the kinds of issues raised by this lawsuit... raise political questions best left to Congress to resolve.” Therefore the government clearly declared it constitutional position, that the issue of a convention call, despite language to the contrary, should be left to Congress “to resolve.” Under the terms 28 U.S.C. 530d that constitutional position made as part of its affirmative defense either is that of the executive branch or of the President himself.

There are two oaths of office in the United States government. The first oath of office for all government employees including all elected officials (except the President) states these officials will “support and defend” the Constitution. The federal law regarding oath of office for elected officials (other than the president) is straightforward. If a person advocates support of the Constitution, that is obedience to it, he is acting legally. If he advocates disobeying the Constitution, he is acting illegally. The President’s oath of office required by the Constitution states the President will “preserve, protect and defend the Constitution of the United States.” The three words protect, preserve and defend effectively define one constitutional duty to ensure the law of the Constitution remains intact and viable. Thus “preserve” most closely identifies his exclusive constitutional responsibility which by law may not be delegated to others in the government as their oaths of office only provide that they “support” the Constitution. Thus the “preserve” power of the President is exclusively his. The law of the Constitution makes it clear the President, and only the president, is vested with the function of preserving the constitution.

In both Walker lawsuits, Department of Justice (DOJ) attorneys stated they were assigned, directed and supervised by the United States Attorney General who heads the DOJ. Under federal law the DOJ is part of the executive branch of the government. By law the Attorney General operates under the direction of the President of the United States who establishes “such terms , conditions and limitations [on that direction] as the President may deem advisable” and which “shall be revocable at any time by the President... .”.

Under the law, the president may delegate functions of his office but is still held responsible for them. However, under the law, the president can only delegate these functions if he done so in writing and published in the Federal Register. There is no record in the Federal Register of either President Clinton (under whose term of office Walker v. United States was filed) or President Bush (under whose term of office Walker v Members of Congress was filed) delegating their constitutional responsibility under their oath of office to preserve the law of the Constitution and allowing the DOJ to assert that law may be ignored by the government. Under the law if the President has not delegated this function of his oath of office, that is to preserve the law of the Constitution, he is still held responsible. As there is no record in the Federal Register of divestment of presidential authority regarding the preservation of the Constitution and the obligation of Congress to call a convention as mandated by the law of the Constitution specified by the word “shall” the President of the United States is legally responsible for the refusal of Congress to call an Article V Convention. Under the terms of the law, the President therefore directed the matter personally.

Therefore, the President, as required by law, must receive a 530d report regarding Congress’ refusal to obey the Constitution. If the President of the United States permitted the 530d report’s recommendations to become an action by the government which the letter by Karen D. Utger indicates the President did, by allowing it to occur, it is a impeachable offense. If the report in any fashion or manner whatsoever permitted, allowed or advocated that Congress may veto the law of the Constitution including taking no action whatsoever when the Constitution demands it do so, is a direct violation of his oath of office to “preserve” the Constitution. The language of the law is explicit: Congress “shall” call a convention. Other federal statutes (1) (2) have caused calls for impeachment of the President but contain language that exempts the President from such charges in that he is allowed to act as he deems “necessary and appropriate.” In the question of an Article V Convention call, there is no federal statute permitting the President of the United States to veto the law of the Constitution regarding a convention call nor allowing others to do so as they deem “necessary and appropriate.”

Obviously, if the President allows or permits the government to disobey the law of the Constitution thus defeating its entire purpose he is not ensuring it remains intact, viable or “preserved.” As the sole federal officer responsible for preserving the Constitution, whether by his initiation or not, the President is, according to the law, ultimately required to approve such an action as it directly affects the law of the Constitution and according to law, is ultimately responsible for this action. There is no federal law nor constitutional clause which permits a judicial decision to remove the constitutional obligation of the President of the United States to “preserve” the law of the Constitution nor is there any federal law or constitutional clause allowing that a judicial ruling may be substituted in place of that constitutional obligation. In sum, the President of the United States is not authorized either by federal law or constitutional clause to be bound by any judicial ruling which would in any way defeat or otherwise obstruct the law of the Constitution. Instead is obligated under the law of the Constitution to “preserve” the Constitution, all other actions by the government notwithstanding.

Clearly, permitting any part of the government the ability to veto the law of the Constitution such as allowing interpretation by members of Congress that they need not perform an act required by the Constitution when such action is specified by word “shall” is a violation of the President’s oath of office. It is an impeachable offense as criminal violations have been committed by those directly involved in refusing to obey the law of the Constitution, specifically violation of oath of office. While the President is exempted from criminal charges stemming from violation of oath of office required of all other officials as he is not required to take that oath of office, he is not exempt from criminal conspiracy charges. Such criminal offense is a “high crime” punishable by impeachment. Under the law of the Constitution, the president may be held liable for any criminal act he may commit. In this instance the “high crime” referred to in the Constitution would be criminal conspiracy in that the president conspired to allow criminal violation of oath of office by members of Congress. Whether by overt action on the part of President Bush or by concurrence with an earlier presidential decision, the conspiracy is identical and therefore equally illegal.