Sen. Jeff Sessions expressed skepticism during his confirmation hearing to be U.S. attorney general on Tuesday about executive branch guidance that has not gone through the full notice-and-comment rulemaking process and said he would be “dubious” about asking courts to defer to such guidance.
The Alabama Republican, who is President-elect Donald J. Trump’s nominee to lead the Department of Justice, was asked about such guidance by Sen. Mike Lee, a Utah Republican, who did not specifically cite the controversy over the Obama administration’s informal guidance on respecting the restroom choices of transgender individuals, but Lee appeared to have had that issue in mind.
“I do think you raise a valid concern,” Sessions told Lee and other members of the Senate Judiciary Committee during a marathon first day of his confirmation hearing. “A guidance document cannot amount to an amendment of a law. Bureaucrats do not have—that’s a pejorative term—but department and agency attorneys and members do not have the ability to rewrite the law to make it say what they’d like it to say. And if we get away from that principle, we’ve eroded respect for the law and the whole constitutional structure where Congress makes the laws, not the executive branch.”
Lee asked Sessions whether as attorney general he would ask courts to defer to such guidance, again without specifically raising a pending U.S. Supreme Court case in which a federal appeals court’s deference to informal guidance by the U.S. Department of Education on transgender restroom rights is at issue.
“First of all, I don’t know,” Sessions said. “I haven’t researched it. But I doubt I would go that far, and I would be dubious about it.”
Desegregation and Other Issues
Sessions addressed several education issues during Tuesday’s hearing, including desegregation, special education, and the schooling of undocumented immigrant children.
Sessions was asked by Sen. Mazie Hirono, D-Hawaii, about a longstanding desegregation order in the Huntsville, Ala., school system and whether as attorney general he would continue to enforce school desegregation consent decrees. He said he would.
“Those decrees still remain in effect in a number of districts,” Sessions said. “Huntsville is a very strong, healthy, and well-managed school system. I believe they have good leadership. But a consent decree remains in effect until it’s altered by the court. They would be enforced until there was an alteration of it, yes.”
Sessions was pressed by Sen. Al Franken, D-Minn., about past statements about his role in filing and pressing school desegregation lawsuits when he was a United States attorney in Alabama in the 1980s.
Sessions acknowledged that he had not filed “20 or 30 desegregation lawsuits,” as he had stated in a radio interview in 2009.
“It is important to be accurate,” Sessions said. “The records don’t show it was 20 or 30 cases. A number of the cases had multiple defendants and multiple parties. But the number would be less than that, as we’ve looked at it.”
And Franken pressed him on about a claim on his Senate Judiciary Committee questionnaire that several voting rights cases, including two involving school boards, and one school desegregation case were among the 10 most significant that he had personally handled.
Franken entered into the record an Jan. 4 opinion essay in The Washington Post by three former Justice Department civil rights lawyers who wrote that Sessions did little more than sign his name to the complaints as the local U.S. attorney.
Sessions said the lawyers were distorting his record in those cases and that he had provided significant support for the cases beyond attaching his name to legal filings.
“When a lawyer signs a complaint, he’s required to affirm that he believes in that complaint, and supports that complaint, and supports that legal action,” Sessions said.
Sen. Christopher Coons, D-Del., asked Sessions about his past criticisms of the main federal special education law, the Individuals with Disabilities Education Act. Sessions has criticized the number of lawsuits emanating from the statute and has said that the law makes it difficult for schools to discipline students in special education.
Sessions responded by referring to the 2004 reauthorization of the IDEA.
“We made real reform in IDEA,” Sessions said. “I led that effort. ... We worked on it very hard. And I was very pleased with the way it worked out. The IDEA community pushed back against the reforms I proposed, but in the end it worked out fine. We got a little more deference to schools.”
Coons also asked Sessions about an Alabama law that sought to require school officials to check the birth certificates of enrolling students and determine the citizenship or immigration status of those without birth certificates.
A federal appeals court struck down the law in 2012.
“First, I had no involvement in that statute,” Sessions said. He said he agreed that undocumented immigrant children “cannot be denied access to education. The courts have decided that, as I understand it.”
Sessions said that in comments critical of the 2012 court ruling at the time, “what I was getting at was that this is a continuing problem and will continue to be a problem if we don’t end the lawlessness. I’d rather have immigrant children here and children of immigrants that came lawfully rather than unlawfully. It creates a problem that we don’t need to have.”
The confirmation hearing was scheduled to continue on Wednesday.
A version of this news article first appeared in The School Law Blog.