Richard Lowe

I have some good news. After an exhaustive review of public records, I found that a number of prominent figures spent months assembling a set of methods and tools designed to help a president succeed in the final two years of a second term — with no House majority and no Senate majority. They worked hard on this. Sleepless nights, pots of coffee, lawyers, researchers, experts. The kind of effort that doesn’t happen by accident. I would think — I would hope — that these individuals would feel a measure of pride knowing their work still has value, that it could still pay off today, even for you, President Trump. They may not have had you in mind when they put it together. But the work is done, and it’s yours for the taking. On the political side, Dick Durbin, Elizabeth Warren, Jack Reed, Chuck Schumer, Patty Murray, Bob Menendez, and Michael Bennet backed executive authority in public letters. On the legal side, Laurence Tribe, Eric Posner, and Harold Koh signed the ten-scholar letter calling it lawful. Virginia Seitz at the Office of Legal Counsel wrote the recess-appointments memo. Eric Holder delivered the declining-to-defend decision. Dan Pfeiffer described the process of culling agency authorities to find what could ship without Congress. Rena Steinzor and the Center for Progressive Reform supplied the regulatory blueprint. Howard Shelanski at OIRA set the timeline. Michael Waldman’s Brennan Center and Sarah Rosen Wartell’s Center for American Progress published the action menus — and others beyond these names contributed as well. Here is what they built. Prosecutorial discretion. The principle that a president’s enforcement agencies may set national priorities using limited appropriations as the legal foundation. Congress funds enforcement operations for a fraction of the removable population, so ranking targets is framed as faithful execution of the law, not legislation. Title 6, U.S.C. section 202, subsection 5, makes the DHS Secretary explicitly responsible for establishing national immigration enforcement policies and priorities. The Morton Memos are the working template. The same statute that let one administration rank targets one way lets this one rank them another. Rulemaking. Any statute already on the books can be implemented through the Administrative Procedure Act’s notice-and-comment process. The Center for Progressive Reform identified 13 regulatory actions to finalize before June 2016 specifically so they’d clear the Congressional Review Act’s 60-day window. The machinery is neutral — it can build rules or unwind them, and the CRA window cuts both ways. Recess appointments. The Recess Appointments Clause can be used during genuine Senate recesses. The OLC memo by Virginia Seitz argued pro forma sessions don’t constitute real Senate business, but the Supreme Court narrowed that reading in NLRB v. Noel Canning — pro forma sessions can count as recesses in some circumstances. The clause still fills vacancies during intersession breaks; it just doesn’t work the way it once did for the pro forma trick. Signing statements. Interpretive language attached to a signed bill limiting how that bill gets enforced. Declining to defend statutes in court. Eric Holder’s February 2011 letter to Speaker Boehner announced the administration would no longer defend the Defense of Marriage Act. A future DOJ can decline to defend whatever statute it chooses, though courts have occasionally appointed outside counsel to defend statutes DOJ abandoned. Convening authority. The phone half of pen and phone — Obama's own phrase, I have a pen and I have a phone. Bringing nonprofits, businesses, and universities together to move policy through voluntary coordination rather than legislation. The same convening power works for any coalition. Midnight timing. Rushing rules to final before the Congressional Review Act window closes... -- Continued below in the message thread -- — Joseph Fosco November 4, 2026