Monthly Archives: November 2016

Judge Posner Slams ‘Stupid’ Decisions by Chief Justice Roberts, ‘Silly’ Stances by Scalia

For months, rumors have circulated about Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit unloading on Chief Justice John Roberts Jr. and the late Supreme Court Justice Antonin Scalia in a conversation before a small audience of First Amendment advocates.

A video of the conversation, which took place in May, has just been posted on YouTube, and the rumors were correct: The prominent and prolific Posner railed against several “stupid” decisions by Roberts, and called the chief justice a “terrible manager” of the federal judiciary. For good measure, Posner said that Scalia’s 2008 gun rights decision D.C. v. Heller was “a terrible opinion” and that his support for the right to burn the American flag was “very silly.”

The 1989 flag-burning decision that Scalia supported, Texas v. Johnson, was in the news Tuesday because of a tweet by President-elect Donald Trump suggesting that flag-burners should be jailed and stripped of their citizenship.

Posner said Scalia was “very proud of the decision,” which ran contrary to Scalia’s personal preferences. But Posner said Scalia’s vote in favor of flag-burning was silly because “he styled himself as an originalist, but there was no reason to think” that 18th century Americans would have viewed flag-burning as a form of expression protected by the First Amendment.

The Chicago-based judge, outspoken author of dozens of books about the law and other topics, said the Heller decision written by Scalia was “full of historical rubbish” aimed at justifying the individual right to bear arms. At a practical level, Posner said, the ruling federalized what had been an area of the law left to the states, which had different reasons for favoring or opposing rights.

Posner made his comments in a dialogue with University of Chicago Law School professor Geoffrey Stone before a “First Amendment Salon” session organized by scholar Ron Collins to discuss Posner’s First Amendment views. It was broadcast from Chicago to participants in New York and Washington, D.C., but the video was not available until this week.

To the surprise of some who attended, Posner’s comments went well beyond the First Amendment and veered into other areas including Roberts’ roles as a chief justice. At one point Posner acknowledged he was “beating up on Roberts.”

Roberts’ 2014 First Amendment ruling in McCullen v. Coakley, which struck down a buffer zone around Massachusetts abortion clinics, was “such a stupid decision,” Posner said. He added that the case itself involved a “grandmotherly type” who wanted to counsel clinic clients against abortion. But once the decision came down, he said, “within 24 hours, the shrieking fetus protectors were back.” It was “completely phony,” Posner added, for Roberts to depict public sidewalks as hallowed forums where “people exchange ideas.” Nowadays, Posner said, when someone approaches a pedestrian to talk politics, “you run.”

Posner also targeted Roberts’ dissent in Obergefell v. Hodges, the 2015 same-sex marriage case. It was “ridiculous,” Posner said, for Roberts to base his dissent on flawed information about the marital and sexual practices of long-ago civilizations “as evidence that same-sex marriage should be forbidden.”

As for Roberts’ “terrible” management of the Supreme Court and federal judiciary as chief justice, Posner rattled off several criticisms: it takes five years for Supreme Court decisions to be printed in the official United States Reports; Roberts ordered the court’s bronze front doors to be closed for security reasons, offending his colleagues; the Federal Judicial Center does not have enough academics to develop training curricula for new judges; and the Supreme Court is deciding half as many cases as it did in the 1960s, with twice as many law clerks.

On the latter complaint, Posner said the high court, with its diminished docket, should expand argument time to give lawyers a chance to make their case more fully. Instead, Posner said, the court keeps arguments to a half-hour for each side, and the justices “babble incessantly during oral argument.”

Lawyers Hear Message of Hate: ‘Go Back to Your Country’

Civil libertarians have sounded alarms over Donald Trump’s calls for mass deportations of undocumented immigrants and restrictions on Muslims entering the country. But as some Big Law partners have found, a vocal segment of America is willing to go further.

Last week William Lee, a partner at Wilmer Cutler Pickering Hale and Dorr and one of the country’s top intellectual property litigators, recounted how he’d been told to “go back to your own country” by a man in his hometown outside Boston this past summer.

He’s not the only one.

Cyndie Chang, managing partner of the Los Angeles office of Duane Morris and president of the National Asian Pacific American Bar Association, said that she was standing on the Capitol steps in Washington, D.C., in May when an older Caucasian man told her the same thing: Go back to your country.

“I was in shock, and fear a little bit,” said Chang. She said that she didn’t respond to the man.

Chang, whose family came to the country from China five generations ago, said that she’s been hearing similar stories from others amid this year’s presidential race and its aftermath, including accounts of threats of violence.

“I am somewhat anxious and fearful,” she admitted. Next week, she said, she will be traveling to another city that she didn’t want to name. She decided to skip a visit to a relative who lives a few hours away to avoid driving alone during that trip. “It’s giving me a little pause,” she said.

Chang became NAPABA’s president at the beginning of November. She said that the organization is working to address the hostility that some members may be experiencing.

“We’re monitoring the situation carefully and putting together a hate crime tool kit for members,” she said. The kit will include information on identifying hate crimes and where to report them.

NAPABA, which represents the interests of roughly 50,000 lawyers, is a nonpartisan group, Chang stressed. “Ignorance and prejudice don’t have a party,” she said.

Shortly after the election, the group issued a statement that the group is committed to working with President-elect Trump and the new Congress “to advance the interests of the Asian Pacific American community.” It also sounded a cautionary note: “Millions of Americans of good faith, of every stripe, and of both parties have expressed profound concern, anxiety and even fear, about the tenor of the recent election, and about the future of our country. As members of the legal profession, we have a special responsibility to ensure the continuity of our best legal traditions, and to defend and uphold our commitments to justice, fairness, equality and the rule of law under our Constitution.”

Hate on the Rise?

Pedro Torres-Diaz, the president of the Hispanic National Bar Association and a partner at Jackson Lewis, said that he was “horrified” to read about Lee’s experience.

“It is of great concern to me personally as a Latino attorney that minority attorneys are experiencing this backlash,” he said.

Torres-Diaz said that he hasn’t heard about similar encounters involving Latino lawyers, but he pointed to a recent bulletin from the Southern Poverty Law Center showing a recent spike in hate acts against immigrants. The center reported 701 reported hate incidents in the week after the election.

Wilmer’s Lee said last week that lawyers in the United States have a responsibility to stand up against racism. His own experience in a wealthy Boston suburb showed that xenophobia isn’t limited to certain parts of the country, he said.

Lee was filling his Mercedes-Benz SUV at a Wellesley gas station when a man asked how he could have such a car and then said that he wasn’t welcome in the U.S.

Lee, who is ethnically Chinese but whose family has been in the country since 1948, told the man that he didn’t understand.

“You mean, you don’t understand English,” the man said.

“I don’t understand ignorance,” Lee replied

Texas Court, After Trump Win, Is Asked to Put Immigration Case on Hold

The first major litigation effect of the election of Donald Trump took place in a Texas federal district court Friday when the lawyers in the case against the Obama administration’s plan to delay deportation of millions of undocumented immigrants asked the judge to postpone proceedings until Feb. 20.

“Given the change in administration, the parties jointly submit that a brief stay of any further litigation … would serve judicial efficiency and economy so that the parties have a better understanding of how they might choose to move forward,” U.S. Justice Department lawyers wrote in the filing.

The case, Texas v. United States, stems from a challenge by Texas and 25 other states to two deferred deportation programs.

In 2014, the U.S. Department of Homeland Security issued guidance that extended a program created in 2012 known as DACA (Deferred Action for Childhood Arrivals) and created a new program known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents).

Immigrants who meet eligibility requirements would have their deportations delayed for three years and they also would be eligible for work permits and other benefits.

The U.S. Court of Appeals for the Fifth Circuit last year upheld an injunction blocking the deportation plan. The Obama administration appealed to the U.S. Supreme Court which, in June, deadlocked 4-4, returning the case to the district court for trial on the merits.

The injunction will remain in place if the judge grants the motion to stay the proceedings. President-elect Trump would have the option of ending the litigation after his inauguration by withdrawing the guidance that authorized the deportation delays.

2.2 Million Dollar Wrongful Death Settlement in Missouri ‘Negligent Entrustment of Gun’ Case against Pawn Shop

A Missouri gun dealer has agreed to pay $2.2 million to settle a wrongful-death suit brought by the mother of a mentally ill woman who purchased a gun from the dealer and who was tried for using it to kill her father.

The settlement is the largest since the 2005 enactment of the Protection of Lawful Commerce in Arms Act, a federal law that shields manufacturers and dealers from liability when their products are used in crimes, according to the Brady Center to Prevent Gun Violence.

“The gun industry and their insurance companies are waking up to the reality that whether jurors are conservative or progressive, gun-owners or not, they will hold gun stores accountable for irresponsibly supplying dangerous people with guns,” Jonathan Lowy, director of the Brady Center’s Legal Action Project and lead counsel for plaintiff Janet Delana, said in a news release.

The settlement comes several months after the Missouri Supreme Court issued a landmark ruling in Delana v. CED Sales ruling that federal law did not pre-empt Delana’s negligent entrustment claims against the dealer.

According to the Missouri Supreme Court’s decision, handed down on April 5, Delana, a resident of rural Lafayette County, Missouri, called gun dealer Odessa Gun & Pawn on June 25, 2012, and asked a store manager that he refrain from selling a firearm to her daughter, Colby Sue Weathers.

Delana told the manager that Weathers is mentally ill; according to her suit against the dealer, Delana’s daughter had been diagnosed with paranoid schizophrenia. Delana told the manager that Weathers had purchased a gun from Odessa Gun & Pawn the previous month and attempted suicide.

“I’m begging you,” Delana said to the manager, according the court’s decision. “I’m begging you as a mother, if she comes in, please don’t sell her a gun.” Two days later, Weathers purchased a Hi-Point .45-caliber pistol and ammunition from the store. Within one hour, she shot and killed her father Tex Delana, court papers state. She was charged with first-degree murder but found not guilty by reason of mental disease or defect and she was committed to a Missouri Department of Mental Health facility.

Janet Delana sued Odessa Gun & Pawn for wrongful death, alleging negligence and negligent entrustment. The defendants moved for summary judgment, arguing that the Protection of Lawful Commerce in Arms Act pre-empts Delana’s claims, and the U.S. Attorney’s Office for the Western District of Missouri filed on behalf of the federal government to intervene in the case to defend the constitutionality of the law.

In October, a Connecticut judge cited the federal law in a ruling to dismiss motions to dismiss a lawsuit filed by victims of the 2012 shooting at Sandy Hook Elementary School, finding that the case fit within the liability protections that the law created for the firearms industry.

In Delana, after a lower court found for the defendants and the case ended up before the Missouri Supreme Court, the state high court found that the federal law is constitutional and agreed with the defendants that it pre-empts Delana’s negligence claim.

But in a unanimous decision signed by Judge Richard Teitelman, the court wrote that the federal law does not pre-empt claims for negligent entrustment and that Missouri’s Restatement of Torts and the state’s common law recognize a cause of action for negligent entrustment against a seller who sells a dangerous item to a buyer knowing that the buyer is unlikely to safely possess the item.

In the Brady Center’s release regarding the settlement in the case, Alla Lefkowitz of the Brady Center’s Legal Action Project, who also appeared for Delana, said the Missouri Supreme Court’s ruling “opened the courthouse doors for victims” and that at least two suits have been filed in the Kansas City area against a gun dealer that allegedly negligently sold a firearm.

In addition to Lowy and Lefkowitz, Delana was represented by Kansas City attorneys L. Annette Griggs and David McCollum of McCollum & Griggs; and Kansas City solo attorney Jane Francis.

The defendants were represented by Kevin Jamison, a solo attorney based in Gladstone, Missouri; and Derek MacKay and David Buchanan, principals at Brown & James, which is headquartered in St. Louis.

Jamison said in an interview that he believes that the defendants would have been able to succeed on the merits of the case if it had continued to move forward, saying that witnesses who saw Weathers on the day of the shooting did not notice anything peculiar about her behavior.

“Their business is to do business and a settlement came down that would let them do that without harassment,” he said. He said Tuesday morning that a state legislator has already contacted him to discuss tightening liability protections in Missouri.

Assistant U.S. Attorney Charles Thomas appeared for the Justice Department.


Wells Fargo & Co has asked a U.S. court to order dozens of customers who are suing the bank over the opening of unauthorized accounts to resolve their disputes in private arbitrations instead of court, according to legal documents.

The motion, filed in the U.S. District Court in Utah on Wednesday, is in response to the first class action lawsuit filed against Wells since it agreed to pay $185 million in penalties and $5 million to customers for opening up to 2 million deposit and credit-card accounts in their names without their permission.

The scandal has shaken Wells, the third-largest U.S. bank by assets. Its former Chief Executive Officer John Stumpf stepped down amid the furor, it has been put under tougher regulatory scrutiny and its reputation has been damaged as it faces multiple probes.

The move to enforce the mandatory arbitration clauses comes as Wells Fargo has launched an advertising campaign to win back customer loyalty in the wake of the scandal.

A spokesman for Wells Fargo declined to comment on the filing.

In a written response to questions from U.S. lawmakers, published last week, the bank said it would stand by its arbitration policy but was offering free mediation services to affected customers.

Mandatory arbitration rules inserted into account-opening agreements prohibit customers from joining class actions or suing Wells Fargo. Instead, the agreements require individual, closed-door arbitration.

Mandating arbitration when signing up for financial products has become standard practice after a 2011 U.S. Supreme Court decision validated the practice. But customer advocates say it improperly denies customers the legal protections of court proceedings, such as the right to appeal, and helps to conceal corporate misconduct from the public and regulators because documents and hearings are not made public.

Customers trying to recover small sums of money are also unlikely to find lawyers to represent them in arbitration, critics say, and the cases do not set a legal precedent to help other affected individuals.

Last year, a court dismissed an earlier lawsuit against Wells Fargo, saying that customers had signed arbitration clauses when opening their accounts.

The bank has come under fire over its mandatory arbitration clauses from Democratic lawmakers in Congress, including Senator Elizabeth Warren of Massachusetts.

The Consumer Financial Protection Bureau, a brainchild of Warren, is considering rules to ban banks, credit card issuers and other companies from forcing customers to submit to arbitration and waive their right to join class action lawsuits.

But the CFPB could find its powers scaled back by President-elect Donald Trump and a Republican-led Congress, according to members of both political parties, lobbyists and lawyers.

‘Loving,’ tells a Legal Love Story for the Whole Family

Just in time for the holidays, the movie “Loving” is spreading throughout the nation’s movie theaters. For lawyers and soon-to-be lawyers, it’s a must-see.

It tells the story of Loving v. Virginia, the 1967 U.S. Supreme Court decision that put an end to state laws prohibiting interracial marriages. It begins in 1958 when Richard Loving, who was white, and his wife, Mildred, who was part black and part Native American, were rousted out of bed by police in rural Virginia and arrested under the state’s anti-miscegenation law.

It could be viewed, literally, as a case study because of its linear start-to-finish approach. But as historian Peter Wallenstein, who wrote an authoritative book about the case in 2014, put it in an interview, “It is not a legal history movie or a civil rights movie, it is a love story.”

That means it’s a movie you can enjoy without boring the heck out of your nonlawyer spouse or children watching with you.

Here’s why you should watch “Loving”:

You will feel good about being a lawyer. As portrayed by actor Joel Edgerton, Richard Loving is not a man of many words. But as the arrest of Loving and his pregnant wife unfolds, he says, “I’ll get a lawyer” at one point and “Call the lawyer” at another. For an interracial couple in the South during the 1950s, no one but a lawyer could help. Richard sours on attorneys more than once, but in the end he mumbles his thanks to Bernard Cohen and Philip Hirschkop. They are the American Civil Liberties Union lawyers who took on the Lovings’ case after Mildred wrote Attorney General Robert F. Kennedy a handwritten letter asking for help.

At the end of the movie, when Mildred learns from Cohen by phone that the Supreme Court has ruled in favor of her and her husband, she says quietly, “It’s a miracle.” How many clients tell you that?

It will remind you that cases are about people. Mildred Loving’s quiet determination to pursue the litigation until the end—it took longer than it seems in the movie—was the key to its success. There were delays and missteps along the way that could have derailed the effort. Richard was ready to call it quits at times. But when Cohen asked him what he would want to say to the Supreme Court, Loving said, “Tell the judge I love my wife.” And guess what: Cohen did just that.

He told the court, according to the transcript on Oyez, “No matter how we articulate this, no matter which theory of the Due Process Clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the Court I love my wife and it is just unfair that I can’t live with her in Virginia.’ ”

You will learn about the Supreme Court—a little, not a lot. Some recent movies have included substantial re-enactments of Supreme Court arguments—think “Woman in Gold” and “Muhammad Ali’s Greatest Fight.” That’s great, especially for Supreme Court aficionados. But “Loving” recapped the Supreme Court oral argument with Cohen and Hirschkop addressing a blurred bench in just the blink of an eye. But that’s OK. The scene, as well as the buildup to it, made it abundantly clear that the Supreme Court is the crucible where basic rights are protected—or not.

It draws a straight line to the present without saying so. The movie is understated in many ways. Lawyers are not pounding the lectern or making dramatic orations. In fact, almost no one raises his or her voice in the movie, so your eardrums will appreciate it. The Lovings fill the screen with love but not with a lot of words.

Perhaps the biggest understatement is this: The director could have made a big deal about how the Loving case set the stage so that advocates of same-sex marriage could win nearly 50 years later. The movie does not mention that connection at all. But it’s obvious nonetheless, powerfully making the case that marriage is a fundamental right. The opinions in the same-sex marriage case Obergefell v. Hodges in 2015 cite Loving nearly 20 times.

Trump Foundation admits to violating ban on ‘self-dealing,’ new filing to IRS shows

Donald Trump’s foundation has acknowledged violating a prohibition against using charitable funds to benefit the leaders of the organization or their family members, a practice known as “self-dealing.”

In the charity’s latest report to the IRS, posted online late Monday, The Donald J. Trump Foundation indicates that it transferred income or assets to someone it wasn’t allowed to, such as Trump or a person or an organization close to him, in 2015 and previous years.

The report does not characterize the nature of any such violation. Spokespeople for Trump and for the foundation did not immediately respond to requests for comment.

The admission appears to validate extensive reporting by The Washington Post showing that Trump used foundation money to settle legal disputes for his companies and to buy a portrait of himself. The Post reported earlier on Tuesday about the new IRS filing. New York Attorney General Eric Schneiderman has said he is investigating Trump’s foundation “to make sure it’s complying with the laws governing charities in New York.”

The foundation previously paid an IRS penalty for impermissibly contributing to the political campaign of Florida Attorney General Pam Bondi, who later decided not to pursue an investigation into Trump University. The payment violated a prohibition on tax-exempt charities making political contributions.

Trump and Bondi have both denied the financial contribution had any link to Bondi’s decision not to investigate the tycoon’s real estate seminar.

Separately, Trump last week agreed to pay $25 million to settle former students’ claims that Trump University defrauded them.

The 2015 IRS form didn’t specify whether the acts of self-dealing were the ones the Post revealed or others.

The filing also showed two $10,000 grants to Project Veritas, James O’Keefe’s activist group that released undercover videos purporting to show Democratic voter fraud efforts in October. It wasn’t clear whether the foundation made two identical grants or the grant was listed twice.

The foundation also gave $5,000 to the Media Research Center, Brent Bozell’s right-wing watchdog whose website called the national news media “the propaganda arm of the Left.”

The Post revealed a drop-off in Trump’s own contributions to the foundation since 2007. In 2015, the charity received $566,370 from the Trump Corporation and $50,000 from another company at the same address (Trump Tower) called Trump Productions, according to the IRS filing.

The biggest gift, $150,000, came from the London office of the Victor Pinchuk Foundation, the charity of a Ukrainian businessman who has also given to the Clinton Global Initiative and the Tony Blair Faith Foundation. The New York Real Estate Institute gave $10,000, and a man in Mount Vernon, New York, named Lawrence Roman gave $5,000, according to the filing.

Texas Judge issues Nationwide Injunction Against Obama’s Overtime Rule

A Texas federal judge issued a preliminary injunction halting the Obama administration’s proposed regulatory revisions that would have doubled for most employees the salary threshold for overtime pay.

U.S. District Judge Amos Mazzant of the Eastern District of Texas, who presides in Sherman, Texas, issued his memorandum and order barring the U.S. Department of Labor (DOL) from implementing and enforcing its proposed new overtime rules, which were scheduled to become effective Dec. 1.

Mazzant, who was appointed to the federal bench by Obama in 2014, concluded that 21 plaintiff states, including Texas, that had requested the preliminary injunction, had established “a prima facie case” that some of the DOL’s proposed changes were without statutory authority.

DOL had estimated the rule changes would, if implemented, expand overtime coverage to more than 4 million additional workers.

Under the Fair Labor Standards Act, employers must pay their nonexempt employees time-and-a-half for working more than 40 hours per week only if the employees make less than $23,660 per year.

But under the proposed revision of the Fair Labor Standards Act regulations, more employees would have gotten this mandatory overtime, as the exempt salary threshold will be raised to $47,476.

But Mazzant wrote that the plaintiff states had shown that DOL had no statutory authority to set that salary level as the threshold or to establish an automatic updating mechanism for setting threshold salary level for overtime pay in the future.

In September, the plaintiff states filed their lawsuit, State of Nevada v. United States Department of Labor, alleging that the proposed revisions to the overtime regulations are unconstitutional.

In additional to Texas, the plaintiff states include Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Utah and Wisconsin.

In their complaint, the plaintiff states argued the revision “rendered virtually irrelevant any inquiry into whether an employee is actually working in an executive, administrative, or professional capacity” and therefore eligible for overtime.

By ignoring such nonsalary factors, the Obama administration “has disregarded the actual requirements of the statute,” the complaint states.

“The new rule exceeds Constitutional authorization too. Under the new overtime rule, States must pay overtime to state employees that are performing executive, administrative, or professional functions if the state employees earn a salary less than an amount determined by the Executive Branch of the government. And there is apparently no ceiling over which DOL cannot set the salary level,” the complaint states.

In response, however, the DOL has argued that the salary level test is “reasonable” and “must be upheld.”


Obama’s Hundreds of Executive Orders, Under Trump Microscope

Eight years ago, a newly elected President Barack Obama and his team sifted through the 291 executive orders that were issued during President George W. Bush’s two terms. Obama revoked Bush’s order restricting access to presidential papers. He also loosened Bush’s restrictions on federal funding of human embryonic stem cell research.

President-elect Donald Trump now faces a similar task—with a nearly equal number of executive orders.

Executive orders, memorandum and “guidance” letters are the chief tools the executive branch can use to set policy without going through the sometimes long, and thorny, regulatory process—and just as fast as they are signed, they can be undone as quickly.

Indeed, Trump declared last week he will—on his first day in office—“cancel every unconstitutional executive action, memorandum and order issued by President Obama.”

Two of the Obama administration’s executive actions are likely early targets. An Obama memorandum created the Deferred Action for Parents of Americans and Lawful Permanent Residents. And a “guidance” letter on transgender students’ rights—issued by the Justice and Education departments—is now at the center of a pending U.S. Supreme Court petition.

Obama’s 258 executive orders, as of Nov. 4, range widely from amendments to the manual for courts-martial to preparing the nation for space-weather events to ensuring lawful interrogations. Obama’s gun-related orders were mostly directives to different departments to increase research efforts into safer guns or to speed up or make more reliable background checks.

During and since the election of Trump, there has been “misleading verbiage” that much of what Obama actually did by regulation “takes the form of executive orders,” said Peter Shane, an administrative law and executive powers scholar Ohio State University Michael E. Moritz College of Law.

Federal agency regulations or rules are not swiftly disposed of by the stroke of a new president’s pen.

Trump will find it more difficult, for instance, if he seeks to overturn the Obama administration’s signature climate-change effort, the Clean Power Plan, and his clean-water rule. Both sets of regulations are being challenged in federal appeals courts by an array of businesses and states. The plans came out of a lengthy regulatory process, not an executive order.

An executive order is basically a written document from the president to members of the executive branch ordering them to do something, said Saikrishna Prakash, a separation-of-power expert who teaches at the University of Virginia School of Law. There is a formal process for issuing them.

“Someone comes up with a proposal and circulates it to all the relevant executive branch agencies,” Prakash said. “They massage and refine it. It eventually gets to the president’s desk. If he is originator of the whole idea, he will sign it, but sometimes it bubbles up from below.”

What an executive order is not, he said, is “a free-floating power to do whatever the president wants.”

Trump’s promise to build a border wall, for example, would require statutory authority, not an executive order, Prakash said. Trump said Sunday night on the CBS News program 60 Minutes that parts of the proposed wall might actually be a fence.

“When we ask what can the president do [by executive order], we’re really asking what constitutional or statutory authority does he have and is he going to decide to memorialize it in an executive order,” he said.

Trump Presidency Could Reshape Policies for Children and Youth

Donald Trump’s presidential victory could significantly reshape policies for youth and families during the next four years.

During the campaign, Trump offered scant details about the policies he would support for children and families in specific areas youth service workers watch closely, such as child welfare, youth homelessness, after-school programming and child nutrition.

But he made his support for broader changes that could significantly reshape families’ lives well known, such as harsher immigration measures, cuts in federal spending and repeal of the Affordable Care Act.

Under Republican control of both the federal legislative and executive branches, lawmakers would have more power to make major changes to some of the biggest programs and portions of the budget that affect children, including Medicaid and discretionary spending.

Children’s advocates will have to push hard for their voices to be heard under a Trump administration, said Bruce Lesley, president at the nonpartisan advocacy organization First Focus.

“I just think children will be completely off the radar screen,” he said.

Lesley also said he expected children’s advocates to spend time playing defense, trying to block policy changes and budget cuts that could undermine public schools, harm children’s access to health care and otherwise diminish support for youth and their families.

Though Trump’s own policy platform offers few clues about specific children and family policies, the start of the presidential transition and early days of the administration could provide some insight into how Trump will govern. Appointments to the Education and Health and Human Services departments could be telling, as will the administration’s initial agenda and budget documents.

Organizations that work on behalf of children and families will begin urging the administration to adopt the proposals they favor right away.

Christine James-Brown, president and CEO of the Child Welfare League of America, said the group always submits a transition document to the new administration, one that focuses both on child welfare and the underlying policies needed to make sure families can support their children.

“No matter who is elected to office they will face a tremendous number of challenges so it will take a major effort to help people connect the needs of children to the success of our country’s future,” she said Tuesday afternoon, well before the election results were announced.

“CWLA will continue to work hard to bring the interests of children and families to the attention of the new president and Congress. We will also work to connect issues of immigration, equal pay for women, raising the minimum wages and other issues that have been addressed throughout the campaign to the needs of children,” she added.