Legal Issues in the Transition Period of the US Election
On December 16, 2020, Benjamin Liebman, Global Chair Scholar of Peking University Law School(PKULS), Robert L. Lieff Chair of Law Professor of Columbia University, and director of China Law Center, along with professor of PKULS, Executive School of Peking University Law and Development Institute, director of the Constitution and Administrative Law Research Center of Peking University, and editor-in-chief of “Chinese and Foreign Law”, conducted an online academic dialogue on the theme of “Legal Issues in the Transition Period of the US Election”. More than a hundred students inside and outside the school participated in the discussion, and the response was enthusiastic.
Professor Benjamin Liebman’s research focuses on the impact of Chinese courts, Chinese tort law, Chinese criminal procedure, and public opinion on Chinese legal system. His has published books including “Authoritarian Justice: Is There a China Model? (Cambridge University Press, 2017)” and “The Visible Hand: Institutional Implications of Chinese State Capitalism (Oxford University Press, 2016)”. He was once a partner in the London and Beijing offices of the law firm Sullivan & Cromwell, law clerk of Justice David Souter and Justice Sandra Lynch’s at the First Circuit Court of the US.
This article presents the communication and dialogue between scholars in the form of written record.
Benjamin Liebman: With more than a month to go before US President Biden takes office, attention has shifted from the election to another set of legal questions about how quickly the Biden administration can reverse key policies of the Donald Trump administration. Today we focus on administrative power and administrative law, and key issues such as the steps needed and the challenges the Biden administration will face in trying to modify or reverse the Donald Trump administration’s policies on climate change, migration and the economy.
Wang Xixin: Under the system of the separation of powers under the US Constitution, why is the executive power, especially the presidential executive power, still so important if the three powers are mutually restricting?
Benjamin Liebman: For more than half a century, the executive power has really been strengthening. Partly because of the expansion of the American executive branch, partly because of the president himself. The main issue of Administrative Law is the procedure to be followed by the executive branch in issuing regulations, what is commonly known as federal rulemaking; but beyond that, the president can also issue presidential executive orders through the executive power vested in him by the Constitution. These executive orders are legally binding but do not require strict observance of the law of administrative procedure, thus providing for a great deal of flexibility, especially as the executive orders of the president dramatically highlight the executive powers of the president.
Wang Xixin: Since the president can issue executive orders through executive power. After the new president takes office, is it also easy to overturn or replace an executive order issued by a former president by issuing a new presidential executive order?
Benjamin Liebman: It’s true that executive orders of this kind are extremely volatile. Biden, who took the oath of office on January 20, could immediately reverse all existing executive orders of the president, with immediate effect. The passage of a presidential executive order follows the same procedure if it is subject to notice-and-comment rulemaking. That doesn’t mean the order can’t be reversed, of course, but it usually takes longer.
On climate change, though the Donald Trump administration pulled out of the Paris Climate Accord , Biden pledged on December 12, the fifth anniversary of the Paris Agreement, on his first day in office, the US will rejoin the Paris Agreement. Biden’s Re entry, like Donald Trump’s exit, could take effect immediately.
In terms of immigration policy, the Biden administration could almost completely revise the policies that the Donald Trump administration has enacted in the past year. However, whether it can be modified and whether it can be modified immediately are actually two different things. Because it’s a political issue, not a purely legal one. Take, for example, the travel ban, a presidential statement made by the president under the Federal Immigration and Nationality Act . The Act greatly empowers the president to restrict the entry of non-citizens into the US. The US president can restrict the entry of non-us citizens on the grounds of endangering “national security”. The Donald Trump administration issued executive orders restricting the granting of visas and the entry of foreign students. In July, for example, the Immigration and Naturalization Service announced that international students on F-1 and M-1 visas must take at least one in-person course in the fall of 2020. If all courses are conducted online, students will not be granted new F-1 visas and will not be able to enter the US through customs with valid F-1 visas. These commands can be changed as soon as Biden takes office, but whether they will be changed remains an open question.
Wang Xixin: Since the president can easily affect the continuity and stability of the legal system by issuing executive orders, how does the law control the power of the president to issue executive orders?
Benjamin Liebman: The control of the law is reflected in the fact that the president must have a legal basis for issuing an executive order and in the fact that after the order is issued it is subject to judicial review. One problem with the Donald Trump administration is that they often seek legal justification only after issuing an order, which can easily lead to court action and its reversal, then the government withdrew the order within a short time.
The court is currently seized of a number of cases against the president’s executive order. Harvard and MIT, for example, jointly sued the Immigration and Naturalization Service in July over the order requiring foreign students to take face to face courses. They pointed out that the irrationality of the order was more obvious under the background of the serious epidemic situation Donald Trump’s repeal of the Obama Administration’s Deferred Action for Childhood Arrivals (Daca) was also brought before the US Supreme Court. As for the wechat ban, a court has ruled that it may infringe on the freedom of speech of wechat users, especially the Chinese American; as for the Tik Tok Ban, Donald Trump cited the International Emergency Economic Powers Act and the State of Emergency Act , but one of the most important exemptions is for information and informational materials, that is the president’s power to control and ban the import and export of information and information materials is limited. Some courts regarded the Tik Tok to be “informational material”.
Wang Xixin: There is a saying in China, “new officials ignore old accounts”, which reflects the government’s failure to keep its promises. For example, in the case of the moratorium on deportation of persons who arrived in the US as children, the beneficiaries have reasonable expectations in law based on the principle of good faith, since the Obama administration apparently did not claim that the pledge was valid for the Obama presidency, but Donald Trump repealed it. The question that arises here is whether, when a new president overturns the orders of his predecessor following a change in the presidency, it will legally have an impact on the interests of individual reliance and on the principle of reasonable expectation of government?
Benjamin Liebman: In fact, on June 18, the US Supreme Court upheld the stay of deportation for those who arrived in the US as children and blocked the Donald Trump administration’s plan to repeal it, the reason for the judgment is based on the protection of the beneficiary’s reliance interest.
Wang Xixin: although the promulgation and repeal of presidential executive orders will take political factors more into account, these acts should not unduly undermine the stability and predictability of legal rules, it should not be contrary to the basic principle of administrative law in protecting the reliance interest. Similarly, in the more politically charged area of Immigration Law, US restrictions on Chinese Communist Party members and their immediate family members coming to the US are also suspected of violating the protection of trust in Administrative Law. Before that, members of the Communist Party of China, like other Chinese citizens, could be granted visas to travel to the US for up to 10 years. It is precisely because of the long-term validity of visas that some Chinese citizens may purchase real estate and make investments in the US, is the sudden shortening of the visa period a violation of the protection of trust?
Benjamin Liebman: It’s a complicated issue, and the key is to find the legal basis. The US Constitution does not protect non-citizens outside the US. Immigration laws, particularly in the Donald Trump administration, give the US president enormous power. Will the Biden administration make any changes to its immigration policy and what kind of changes? What will happen to the Tik Tok injunction, which has a wide audience in the US, and the wechat injunction, which acts as a liaison between Chinese and American businesses? The answers will only be revealed in two months.
Translated by Xu Mengyao
Edited by Xu Mengyao