Author Archive for Jonathan Lurie

Retirement May Have to Wait After Trump’s Latest Executive Order

The presidential orders continue to come thick and fast from the Trump administration.  One of President Trump’s most recent orders, titled Presidential Memorandum on Fiduciary Duty Rule, takes aim at deregulating those who invest your retirement funds.  It does this by undercutting something we have discussed on this blog before–the Obama Administration’s changes to the duty somebody investing your retirement funds has to you.

Planning for retirement is always challenging.  With that in mind, you always want the best possible advice.  However, the standards the people giving you that advice are held to might surprise you–and not in a good way.  The fiduciary duty rule was designed to make sure your always got the best advice possible.  So let’s take a look at exactly what the rules being targeted do and how Trump’s new memorandum will affect them.

What Are the Changes Being Targeted?

RetirementEarly last year, the Obama administration announced through the Department of Labor that they were changing the rules when it came to the duties a retirement investor owes their clients.  As it was, retirement advisors generally owed their clients “suitable advice.”  The new rule applied a higher level of obligation, known as a fiduciary duty, between client and retirement investor.

fiduciary duty is a legal duty to put the interests of a person or party above all else; violating this duty leads to legal repercussions. Somebody who has a fiduciary duty is called a fiduciary. In 1974, the Employee Retirement Income Security Act (ERISA) was passed to help create standards and practices for retirement and health plans. The original act applied a broad rule, assigning fiduciary duty to those rendering investment advice regarding a retirement plan for compensation. However, one year after ERISA was passed, the act was amended so that the application of fiduciary duty to retirement advisors was substantially limited.  Thus, the usual standard applied to retirement investors has been, as mentioned above, “suitable advice.”  Suitable advice requires an advisor to provide investing suggestions which the adviser believes are, as the name of the advice suggests, suitable to the client’s interest.  This is as opposed to providing advice that puts the interests of their client above all else–as per a fiduciary duty.

So just how much damage can entrusting your retirement to an advisor who is held to less than a fiduciary standard do? While there are certainly advisors who will provide non-conflicting advice regardless of the standard they are held to, the damage caused by conflicted advisors is substantial.  Leading up to the rule change, the Obama administration issued a study estimating that conflicts of interest cost retirement plans about $17 billion a year. The Department of Labor estimated that conflicted investment advice “could cost IRA investors between $95 billion and $189 billion over the next 10 years and between $202 billion and $404 billion over the next 20 years.”

The way the lack of fiduciary duty might be costing you money is where an retirement advisor suggests investment opportunities that provide them better commissions instead of providing you better returns. It is very common for companies to offer percentage commissions or rewards to advisors on certain investments or types of investments.  For example, the company Table Bay offered “a Maserati to advisers who sell at least $7.5 million in annuities in 2014 and a BMW, Range Rover, or Porsche to those with at least $6 million in sales.” These sort of deals can lead a retirement advisor to recommend investments with the best commissions as opposed to investments that are best for your retirement portfolio—leading to the costs described above.

Looking at these facts, this rule change certainly seems like it’s pretty beneficial to the public.  However, it has had its critics since it was first announced.  Those opposed to the rule have said that the changes may push some advisors out of the market by decreasing their profits.  They have also argued that it will lead retirement investors to offer services to lower income individuals.  While there hasn’t much evidence to indicate investors would abandon such a substantial market, it seems President Trump has been listening intently to the fiduciary duty rule’s detractors as he took the time to focus an entire memorandum on gutting the rule.

What Exactly Does the Presidential Memorandum Do?

A Presidential Memorandum has less formalities than an executive order, but carries similar force.  This means that, because the fiduciary duty rule was an agency policy change by the Obama administration as opposed to a Congressional Act, the rule is the sort of thing Trump can target directly through executive orders.

As it is, his memorandum is slightly more measured in its approach.  The memorandum states that the fiduciary duty rule is not consistent with the policies of Trump’s administration.  With this in mind, the memorandum requires the Secretary of Labor to review the rule in order to ensure that three tenants apparently crucial to any regulation under Trump’s watch.  First, the Secretary needs to determine is the rule, or any element of it, is likely to harm investors due to a reduction of access to advice–essentially ask advisors whether they will offer less services if they have to provide advice exclusively in the best interests of their client.  Second, whether the rule, or any of its parts, has caused disruption in the retirement investment industry sufficiently to have a negative effect on investors or retirees.  Third, the Secretary must determine whether the rule will cause an increase in litigation–an almost certain byproduct of holding investors to a higher standard of duty–as well as an accompanying increase in price for those seeking retirement services.  If, after a review of the legal and economic impact of the rule, it is determined that any of the three points in the memorandum are at issue then the Secretary of Labor must get rid of–or at least revise–the fiduciary duty rule.

Is This the End of the Fiduciary Duty Rule?

Given how broad the three elements in the memorandum are, it’s a pretty good bet that the fiduciary duty rule will be done for in the next few months.  At a minimum, we can expect a substantial delay before the rule takes effect.  Unfortunately, this change is part of a trend of demanding deregulation even where it doesn’t necessarily make sense.  What could have been a substantial step in consumer protection seems like it will, unfortunately, never materialize.

Aetna Health Insurance Lied About the ACA and Triggers Anti-Trust Claim

The Affordable Care Act (ACA), also known as Obamacare, has been an extremely contentious bit of legislation.  The future of the act is currently extremely uncertain, President Trump signed an executive order his first day in office which–while vague enough to be nearly symbolic in nature–still serve to limit the law to some extent.  However, the law has also been at the heart of a recent court decision which put a stop to a $37B dollar merger between two health insurance behemoths.

Aetna ACA

The decision comes as part of the ongoing anti-trust case over the merger between Aetna and Humana–two of the five biggest health insurance companies in the nation.  The announcement of the merger agreement of these two companies in 2015 led to an immediate investigation, and ultimately led to the Department of Justice, eight different states, and the District of Columbia all filing lawsuits saying the merger was anti-competitive.

Aetna obviously disagreed and between the government and them they managed to produce millions of pages of arguments and evidence for each side as to the exact economic impact of the merger.  Aetna’s dedication to the issue is no surprise, beyond the desire to see the merger go through they had some serious skin in the game–a $1B dollar fee to be paid to Humana if the merger fell through.

What Did Aetna Claim about the Affordable Care Act (a.k.a. Obamacare)?

One of the most contentious arguments revolved around the ACA itself.  The Affordable Care Act created a public forum through which the public could purchase insurance plans, although it did allow insurance companies to offer alternative plans outside of this public market.  It also requires insurers interested in providing plans through this market to comply with certain obligations.  Just before the lawsuit began, Aetna withdrew from all but four of the states it offered insurance policies through the ACA.

Aetna said that they withdrew because the plans they offered under the ACA were not making them money.  The government argued that they did it as part of strong arm tactic.  They said that Aetna, knowing the impact it would on public perception of the ACA, threatened to leave the program if the merger wasn’t approved

There was a fair bit of evidence that many of the ACA programs were, in fact, making Aetna quite a bit of money.  However, the government struggled to produce evidence showing Aetna’s actual motivations in leaving the ACA programs.  That is, they were having trouble, until they produced an email from Aetna’s Chief Executive to the Department of Justice itself specifically stating that their participation in the ACA hinged on them being allowed to merge with Humana.  From there, they went on to produce conversations with Aetna officers where they heavily suggested, and one time outright stated, that if they weren’t happy with the merger results the government wouldn’t be happy with their involvement in the ACA.  They even found emails where, after a series of emails explaining that the withdrawal was to strengthen their position in their upcoming anti-trust lawsuit, Aetna executives actively mentioned they were trying to avoid leaving a paper trail indicating the reason they withdrew from the ACA and making efforts to shield any such evidence from being produced in a lawsuit.

A few weeks ago, in a 156 page monster of a ruling, the court finally agreed with the government and part of that ruling was based on the fact that Aetna had misled the public–and attempted to mislead the court–as to the motivations behind leaving the ACA program.  So in order to understand how, let’s first discuss exactly how anti-trust law works before looking at how Aetna’s deception as to the ACA effected their case.

How Do Anti-Trust Lawsuits Work?

Anti-trust law is basically the government trying to keep companies from becoming such an enormous market presence that they prevent other businesses from competing with them.  If you’ve ever played Monopoly you get the idea.

The government pays particular attention to health insurance companies in anti-trust cases because of how Medicare operates and specifically how the government pays insurance companies to provide insurance supplements to cover gaps for seniors on Medicare.  Where health insurance companies have huge enough market presence, it leaves seniors paying fees that make these gap-filler plans inaccessible.

In order to establish that a merger would violate anti-trust law, the government has to show that such a merger would “substantially lessen competition, or tend to create a monopoly.”  They don’t need to show that it will absolutely happen, but just that there is a probability that a merger would be anti-competitive.  Establishing this, as you could probably tell from the millions of pages of evidence and a 156-page ruling, is generally an incredibly complicated and in-depth process.  Where the government can show such a probability, there is a presumption that a merger is illegal.  However, a defendant in an anti-trust case, such as Aetna, can produce evidence to rebut such a presumption.

There was obviously an enormous amount of evidence here as to the economic impact of the merger, evidence supporting both sides.  However, the question ultimately came down to how much of the market Aetna would end up controlling–and that’s where their game-playing around their motivations behind leaving the ACA came into play.

The Repercussions of Aetna’s Lie

Aetna’s whoppers about the ACA weren’t the only or the deciding factor in the court’s ruling.  However, they were influential enough to one of the few elements they specifically mentioned in the summary of their ruling out of the over a hundred pages of evidence that ruling discusses.

So what did Aetna’s dishonesty actually mean for their case?  The government argued that because Aetna misled the public, the court had to ignore the fact that Aetna had in fact left the markets for those states and only consider Aetna’s market presence as it was before they withdrew.  The court didn’t buy this, however they still took Aetna’s deception into account.  They looked to the future to consider whether Aetna may expand into those markets in the future.  Given that Aetna was making money in those and only withdrew as part of a strong arm tactic, they felt it very likely they’d return to the markets they left after the merger completed.  They felt this true in Florida, where the ACA markets were actually found to be the only profitable part of Aetna’s business–a situation which led to confused emails from Aetna officials out of Florida–these emails received a hasty response to only discuss the matter over the phone.

With all this in mind, the court felt it was likely that Aetna would simply return to the markets it had abandoned post-merger.  As discussed above, likely is all a court needs in an anti-trust case.  Thus, in a very real way, Aetna’s approach to the ACA had a huge hand in killing their chances of a successful merger.

What Does This Mean on a Broader Level?

First and foremost, the most obvious lesson here is that judges don’t particular care for hiding evidence.  So much so that it took what could have been a fairly small issue and turned into an entire section of the court’s ruling.  However, the reality of the situation also impacts some of the arguments surrounding the ACA.

Just weeks ago, Aetna’s withdrawal was used as evidence to support the end of the act.  However, when the reality is a more profitable one than Aetna led the country to believe, it certainly muddies the water on the issue.  We’re almost certainly going to see a lot of changes to the ACA in coming months and years.  However, it’s important that we look at the facts as they are when discussing the issue–and not spin on the topic such as Aetna’s misrepresentations.

Why the “Muslim Ban” is Still On Hold

In a presidency already jam-packed with sweeping changes and controversial actions, no move has been so contentious as President Trump’s executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States;” better known colloquially as the “Muslim Ban.”  The executive order placed a 90-day bar against immigration from seven Muslim-majority countries, a 120-day bar on all refugees, and a permanent bar against refugees coming out of Syria.  The response to the order has been vocal to say the least.  However, the response has not just been protests and outcry–the order has also faced a number of legal challenges.  Just recently, a Washington court placed an emergency injunction on the “Muslim Ban”–a court order temporarily preventing Trump’s executive order from taking effect.

This isn’t the only, or even the first, court place an injunction on the “Muslim Ban.”  Courts in California, New York, and Massachusetts have all issued orders blocking parts of the ban. However, the Washington ruling was the first to stop the entire order in its tracks.

The Washington ruling was quickly appealed to the 9th Circuit Court of Appeals by the Department of Justice with the goal of overturning the injunction.  However, just yesterday, the 9th Circuit came back with a unanimous decision to keep the stay in place.

The Lead Up to the Ruling

In the oral arguments leading up to the decision, the court seemed split but appeared to lean in favor of upholding the ban.  Two of the judges on the three judge panel ruling on the case targeted the attorney for the Department of Justice (DoJ) with sharp questions about what evidence they had to support the need of the ban in the despite its potential for unconstitutional discrimination.  They also questioned the DoJ’s position that they did not have the power to review Trump’s executive order.  The third judge however, an appointee of former President George W. Bush, targeted the lawyer for Washington with equally sharp questions about whether the ban was discriminatory in the first place.

Muslim Ban TrumpA great deal could be read into these questions, and many felt confident that Washington’s injunction would be upheld 2-1.  However, it’s important to remember that questions can be just that–a judge’s job is to challenge both sides of the argument where they see inconsistencies in a pursuit of the truth.  Ultimately, the judges–appointed by a mix of Republican and Democrat presidents, came out with a unanimous 3-0 ruling against the “Muslim Ban.”

Why Did They Rule Against the Order?

Where a law, or executive order as the case may be, discriminates against a protected class (such as race, national origin, or religion) it is held to the highest levels of scrutiny and must be absolutely necessary to a crucial national concern with no other less harsh alternatives before it can be constitutional and thus valid.  My colleague has previously published an excellent article on the constitutionality–or lack thereof–of a immigration ban targeting Muslim majority countries.  While her article focuses on discrimination based on national origin, a very valid concern when we’re talking about an order which singles out people originating from specified nation for worse treatment, Washington’s injunction instead hinges on the argument that the ban singles out Muslims for discrimination.

However, the 9th Circuit’s decision does not go so far as to say that the “Muslim Ban” is or is not discriminatory.  Frankly, it doesn’t need to go that far in order to determine whether to uphold an injunction.  Instead, they need to make a decision based on whether the injunction itself should stand.  This requires them to find that the federal government has provided evidence which establishes that the country would suffer irreparable harm if the “Muslim Ban” were not immediately reinstated.

However, the federal government barely bothered to try to produce evidence on this issue.  Instead, they stuck with an argument that the courts had no power to review President Trump’s executive order when it was made on the subject of immigration.  While immigration is a subject where the President’s executive orders have the most sway, the idea that an executive order would beat out the Constitution is patently ridiculous and without support.  The 9th Circuit said as much in their opinion, stating “The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections…There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.”  Basically, they told the government that–while executive orders receive deference when it comes to immigration and national security–to say that they are immune to the highest law of the land in the Constitution is a very silly argument indeed.

Thus, with the DoJ focusing on arguing that the Court didn’t have the power to intervene on an unconstitutional executive order, they didn’t really bother to produce any evidence of the danger of keeping the injunction in place.  They produced no evidence of terrorist attacks from refugees out of the named countries, really no evidence at all of dangers presented by keeping the injunction in place.  Thus, they lost 3-0.

What the Ruling Means

To put it most simple terms, upholding this injunction means that the entirety of President Trump’s executive order will simply not take effect until the case is fully resolved–immigration from the countries listed and refugees from around the world can continue to seek opportunity in the United States of America.  At a more abstract level, a unanimous ruling from three judges with differing political ideologies sends a message to the world about how strongly the United States values the Constitutional rights it guarantees.

The case is not completely finished, it can and almost certainly will be appealed directly to the Supreme Court of the United States.  However, with large chunks of the executive order designed to end 90 and 120 days after the order was signed it seems likely that these elements will run their course before a decision could come out of the Supreme Court on the issue.  This might require the Trump administration to come out with updates to the order if they want these elements in effect–updates which could face their own legal challenges.

What’s more, the Supreme Court currently has only eight sitting members.  With a very close ideological split in the Supreme Court, as well as a low chance of appointing a ninth member in time to address the issue, it is possible that the Supreme Court may simply deadlock on the issue as they have many times over the last year of inaction on the seat.  This would leave the 9th Circuit ruling in full force.

Still to come is the decision on the actual constitutionality of the order.  The 9th Circuit itself was fairly non-committal on the issue, simply stating that both sides had powerful interests in conflict–the government with an interest in national security and the power of executive orders, the public with an interest in free flow of travel, avoiding separation of families, and freedom from discrimination.  However, what they did rule on the issue was that the courts should consider the past statements of President Trump and his advisers as to whether the immigration ban was meant to target Muslims in a discriminatory fashion.  With President Trump and his advisors frequently declaring, both on the campaign trail and once in office, that an immigration ban targeting Muslims and favoring Christians is on their agenda it seems that this would allow in strong evidence that the “Muslim Ban” is in fact discriminatory and unconstitutional.

Trump Continues his Concerning Disdain for the Court System

As you might have noticed from his argument to the court in this case, President Trump has a penchant for a concerning belief that the he is above the Judiciary Branch of the U.S. Government.  Immediately after the ruling he took to Twitter to again publically blast the decision.  He has repeatedly questioned the intelligence and competence of every judge who has stood in his way.  Just this week he has publically called the courts “disgraceful,” said that they have less understanding than “a bad high school student,” and heavily implied political bias in the entire U.S. Judiciary system.  To say this lack of respect and understanding for the third branch ensuring checks and balances within our government is disturbing would be an understatement.  Even Neil Gorusch, Trump’s own nominee for the Supreme Court, has called his attitude “demoralizing” and “disheartening.”  Hopefully, a unanimous bi-partisan decision such as this will help him understand the importance of law.

President Trump Strips Privacy for Non-Citizens

With the furor over President Trump’s immigration ban reaching fever pitch around the nation, conversation around his many other executive orders has died down substantially–especially considering how many we’ve seen in the last few weeks.  However, these many orders have ushered in sweeping changes.  Among these changes, buried in one of these many orders, is a drastic change from recent years in how the protections of the Privacy Act apply to immigrants, refugees, and those abroad.

On January 25th, Trump issued an executive order titled “Enhancing Public Safety in the Interior of the United States.”  The order is primarily focused on changing policies as to how immigration laws would be enforced.  However, embedded within the order was a section which strips many of privacy rights.

Section 14 of the order, titled “Privacy Act,” reads as follows: “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.”

The changes have the potential to remove privacy protections from not only green card, visa holders, and would be immigrants–but also citizens of every other county.  Thus, this order has led to serious concerns both in terms of the dangers created for some by this loss of rights and the potential to shatter treaty agreements with the EU undermine companies big and small doing business abroad that requires data collection.  In order to explore both these concerns, let’s first look at privacy rights and what exactly the Privacy Act itself does.

PrivacyUnderstanding the Privacy Act and Privacy Rights

The Supreme Court has ruled that the constitutional right to privacy is implied through a combination of the 1st and 14th Amendments.  However, the exact breadth of this right is a bit more amorphous.  The privacy rights you have are mostly a product of combination of federal statutes and state law–most notably in Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington where the right to privacy is guaranteed by the state constitutions.  Among the federal statutes guaranteeing privacy rights, the U.S. Privacy Act of 1974 provides some of the broadest protections.

The Privacy Act prevents government agencies from disclosing personally identifiable information about U.S. citizens and lawful permanent residents without the consent of the person whose information they are disclosing.  Personally identifiable information is a concept which has seen many different definitions under the law.  However, here it can be understood to refer to information that, alone or in conjunction with other information, could be used to contact, identify, or find any given person.  The Privacy Act also allows a person to request access to information on them and request corrections to any mistakes.  There are a number of (occasionally quite broad) exceptions to these protections such as when the information is disclosed for law enforcement purposes, national security purposes, census taking, or congressional investigations.

While the Privacy Act doesn’t require the inclusion of people other than U.S. citizens or lawful permanent residents, since 2007 it has been the policy of the Department of Homeland Security and other agencies to extend its protections more broadly and include non-citizens.   In 2014, a policy directive signed by President Obama also imposed limits on the ability of U.S. agencies to use intelligence collected in bulk “whatever their nationality and regardless of where they may reside.”  Trump’s order rolls back the clock on these changes–and governments abroad have taken notice.

Privacy Shield: Potential Problems for Businesses Big and Small?

Among the governments keeping an eye on our changes in privacy policy, the EU is certainly going to be keeping a particularly close eye.  This is because, in the wake of the Edward Snowden leaks and many complaints to the European Court of Justice (ECJ) of privacy violations by companies such as Facebook, the ECJ decided in 2015 that the Safe Harbor arrangement between the EU and US was no longer valid.  These Safe Harbor Privacy Principles allowed U.S. companies whose business involved storing the data of EU citizens to operate without fear of lawsuit so long as they enacted policies complying with the principles.  Without these protections, over 1,500 businesses–including many of our largest tech giants–were left in legal limbo.

With so many businesses and so many jobs at risk, the U.S. was quick to begin negotiations to establish a new agreement setting up a framework of privacy policies within the U.S. that could restore the protections the Safe Harbor Privacy Principles provided.  Last year, these negotiations finally culminated into an agreement known as the EU-US Privacy Shield.

The Privacy Shield hinges on agreements by the U.S. to provide a certain level of privacy protection to EU citizens.  Trump’s order would, at least at first glance, remove these protections–at least when it comes to the Privacy Act.  This has understandably led to concern and outcry from businesses worried that order has, in its haste, torpedoed the Privacy Shield and their businesses along with it.

Fortunately, this is not the case.  The reason being that the order acts “consistent with applicable law;” as it must because executive orders do not have the power to overturn laws enacted by Congress.  When it comes to the Privacy Shield, that applicable law is the Judicial Redress Act.  This Act specifically extends the protections of the Privacy act to citizens of 26 countries, including the EU, and provides access to U.S. courts should they need to sue over any violations.  The order cut it close however–the protections of the Judicial Redress Act were signed into effect by the previous Attorney-General just three days before Trump took office and only truly became law on February 1st of this year.

EU officials have made statements announcing that the Privacy Shield is not affected by rights under the Privacy Act–instead relying on the Judicial Redress Act.  However, they have made it very clear that Trump’s executive order has raised alarm bells and that they will be keeping a close eye on how privacy rights develop within the U.S.  This means that, even though this particular order hasn’t set businesses adrift just yet, if your business operates internationally through the internet–specifically if it services EU citizens–it’s going to be very important to keep an eye for any developments when it come to Privacy Shield protections.

Dreamers in Danger

While the Privacy Shield may not be in danger, the order certainly strips privacy protections from many individuals.  In some cases, this loss of protection has created a particularly awful situation–the potential to turn a dream into a nightmare.

Dreamers is a term commonly used for those who would be granted citizenship under the Development, Relief, and Education for Alien Minors Act or DREAM act.  The act, which would have provided a path to legal citizenship to younger illegal immigrants brought to the U.S. as child, has been introduced in Congress several times but has never succeeded in becoming law.  However, in 2012, President Obama implemented the Deferred Action for Childhood Arrivals (DACA) program through a policy directive.  The directive allowed those who might have applied for citizenship under a DREAM act to instead apply for a stay on deportation.  The act also provided those who applied to receive a social security number and apply for a work visa.  Those who applied under the directive where called Dreamers and over 700,000 people benefitted from DACA.

However, applying for DACA requires an applicant to provide quite a bit of personal information–from addresses and phone numbers to what school the young person attends.  Under Trump’s executive order, all protections on this information have been stripped away.  Immigration and Customs Enforcement need only ask to access information provided in hopes of obtaining a visa and turn that information towards deporting those people.

Uncertain Orders Affecting Sweeping Areas of Law

President Trump’s order has, much like his immigration ban, applied broad strokes to complicated areas of law and left the public puzzling over its exact breadth and struggling to pick up the pieces.  For example, it’s still unclear whether this order is meant to revoke privacy rights for people around the country with dual citizenship.  As time passes, lawsuits will certainly develop to figure out the exact boundaries of this order.  However, for now, we are simply left to assume the broadest possible interpretation–stripping privacy rights from an enormous number of people–from foreign students to refugees to dreamers.

DAPL: Can Trump Push Forward the Dakota Access Pipeline?

The protests over the Dakota Access Pipeline (DAPL) have been going on for around a year now, with the Standing Rock Sioux Tribe and their allies demonstrating to stop the completion of the oil pipeline.  The Sioux argue that, not only does the project violate their treaty rights by failing to consult them on projects crossing through their land, the oil pipeline would also poison their only water supply by crossing under Lake Oahe and destroy land sacred to the tribe.

Their concerns have merit, during the Sioux Tribes lawsuit on the matter they brought concerns over specific sacred locations before the court–only to find the following Monday that all the areas they mentioned to the court had been bulldozed over the weekend.

Trump DPL

The protesters had won a huge victory last year, the Department of Justice under the Obama administration, along with the Department of the Interior and the U.S. Army, issued a joint statement pausing construction on the DAPL while the U.S. Army Corp of Engineers reviewed its decisions as to whether the pipeline’s construction was consistent with federal law.  In what looked like an ultimate victory for the Sioux, the Corp of Engineers ended up denying an easement which would have allowed the DAPL to cross Sioux land towards the end of last year. An easement is a legal term for the right to make use of land that isn’t yours for some specific, limited, purpose.

Many thought this was an end to the DAPL pipeline.  Last week, however, President Trump issued an executive order which has the potential to change all that.  The order, published on January 24th 2017, has been heralded as a potential deathblow to the protest efforts of the DAPL demonstrators.  So what exactly does the order do?

What is in the Order Itself?

Despite the frustration and worry that this order has caused to the Sioux tribe and their supporters, Trump’s order is not one outright ordering that the DAPL be finished and use Sioux land.  This is likely because Trump simply does not have the power to make such a proclamation via executive order, likely the same reason that President Obama didn’t simply end the pipeline via executive order.  The process of approving or denying the DAPL is a more complex administrative process.  The order takes a similar approach to attempting to expedite the completion of the Keystone XL pipeline–previously denied permit due to environmental concerns in 2015 by previous Secretary of State John Kerry.  However, what Trump’s order can–and does–do is make this administrative process quicker and smoother for the business interests behind these pipelines.

In his order, Trump leverages his authority to order the Secretary of the Army to instruct the U.S Army Corp of Engineers and the Assistant Secretary of the Army for Civil Works to review and approve, as quickly as possible consistent with current law, renewed requests for a DAPL easement.  It also orders them to, again consistent with existing law, consider whether to rescind or modify the steps that the Army Engineers had taken to stop the DAPL–last year’s memorandum rejecting the easement and a proposed review of the environmental impact of the DAPL issued last month.  Finally, it orders an expedited grant of all other permits and easements necessary along with a waiver of notice periods to further expedite the process–once again so long as these actions are consistent with existing law.

So you’ve probably noticed a trend in the order–consistent with existing law.  There’s even an entire section of the order saying that the order shouldn’t be construed to attempt to alter any Federal, state, or local property law.  This means that if the environmental impact, use of land, or other legal issue are still inconsistent with the requirements of law they will still not be made.

So does that mean that the Sioux and other DAPL protesters are worrying over nothing?  Absolutely not.   The DAPL has been given another bit at the apple and Trump’s order certainly shows how he thinks the process should proceed–stacking the deck in favor of the DAPL.  However, the Sioux have a number of legal rights which they will certainly argue in their renewed efforts to stop the DAPL from crossing their land.

What are the Rights of the Sioux?

The first and most obvious right of the Sioux is the right to a thorough and well considered review process of the environmental impact of the DAPL.  The process itself would likely take months and given the Standing Rock Sioux have already filed suit for an injunction on the review altogether there is very little chance that the process will be completed particularly quickly.  If the review goes through and the Army Corp of Engineers reverses their stance on the environmental impact of the DAPL, there is no question that the Sioux can and will bring a lawsuit questioning the thoroughness of the review–especially if the review is particularly hasty as Trump’s order requests..

The Standing Rock Sioux also have legal rights to the land itself.  In 1980, the Supreme Court ruled that the U.S. had unjustly taken the Black Hills from the Sioux tribe.  The U.S. government was ordered to compensate the tribes for the land taken from them.  However, the Sioux declined the payment and instead sought a level of ownership in the land taken from them.  Unfortunately, this does not mean that the Sioux actually own the land that was taken out from under them as U.S. law generally follows the “doctrine of discovery.”  This basically means that whoever initially documented land can lay claim to it.

This approach has led to two things, shaky ownership of ancestral lands for Native American tribes and a series of rights granted to those same tribes to try and recognize the land that has been taken from them.  One of the most important of these rights, granted in 1992, is the known as the right to be consulted.

The right to be consulted requires a federal agency to consult with local Native American tribes before undertaking or approving any construction project in order to ensure that there are no sacred sites near the construction site.  This applies even if the project is off reservation land in order to recognize the fact the many tribes have been forced to move far away from lands that were once theirs and sacred to them.

The exact nature of the consulting process has been a point of contention with the DAPL and the Sioux.  Those behind the DAPL argue that they did consult the Sioux sufficiently.  However, the Sioux argue that they should have been consulted more frequently as the project evolved instead of essentially brought in last second to rubber stamp what was a nearly completed project.

The Reality: Climate Not a Priority For Trump

Beyond a willingness to trample the rights of the Standing Rock Sioux, Trump’s order also shows a  disregard for the environment as a whole.  However, this is no surprise.  Trump has already vowed to cancel Obama’s Climate Action Plan and has threatened to pull out of or defund the Paris Climate Agreement, an international treaty with the goal of reducing human impact on global warming.  His appointment for head of the Environmental Protection Agency is on record as a climate change denier–even having previously stated that he didn’t feel the EPA was necessary at all.  The DAPL order is likely the tip of the iceberg of what we should expect–both when it comes to climate and when it comes to disregarding the rights of minorities.



<