Jul 28, 2015

Laurence Tribe and the Obama Administration

New York Magazine has a lengthy profile of Laurence Tribe, whose challenge to provisions of the Clean Air Act has drastically altered his standing among fair-weather friends on the left. One of the more interesting aspects of the article concerned his rise and fall in the Obama Administration.

Upon the election of President Obama in 2008, Tribe anticipated an “influential” role in the new presidency:

Tribe remained in touch with Obama after he graduated and was one of his early political champions. He introduced his “inspiring” former student to the people of Iowa in a 2007 campaign ad. On the night of the 2008 election, Tribe emotionally embraced Obama in Grant Park. “As a nation,” he wrote in a blog post the next morning, “we have come of age.” In anticipation of an influential role in the new administration, Tribe prepared to move to Washington.

Tribe envisioned himself as some sort of Rule-of-Law Czar to handle Guantanamo and other big issues.

Tribe was offered assurances of a high-level job. In 2009, he wrote a private letter to Obama suggesting a “newly created DOJ position dealing with the rule of law.” He seemed like an ideal candidate to sort out dilemmas like Guantánamo. “I thought that for me to be giving broader advice on constitutional issues would make sense,” Tribe says.

This position ostensibly would have been outside the normal DOJ hierarchy–Attorney General, Assistant Attorney General, Deputy Assistant Attorney General, etc.  The “czar” position would have hovered over a lot of turfs–among both political appointees and civil servants. He would have had direct access to the President himself.

But that didn’t happen, due to politics and the turf war.

When he got there, however, he discovered that Obama hadn’t changed politics. “It’s not just all the terrible things that people say behind each other’s backs,” Tribe says. “It’s how jealous people are of their turf, even when you are part of the same administration.” …

“But it was clear that was stepping on people’s toes.”

Instead, Tribe was stuck with an odd position that didn’t seem to have much authority:

He instead took a nebulous Justice Department job, “senior counselor for access to justice,” and did grassroots work like aiding homeowners facing foreclosure.

The New York Times reported in 2010:

In that position, created especially for him, Mr. Tribe has been asked to suggest ways to improve legal services for the poor, find alternatives to court-intensive litigation and strengthen the fairness and independence of domestic courts. But Mr. Tribe has a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington.

He is also largely invisible. The Justice Department is not allowing him to give interviews, apparently in part because of nervousness in the administration that his unabashedly liberal views might draw criticism or that Mr. Tribe, described by friends as having a big intellect and a healthy ego, might stray from his assigned lane.

Mr. Obama himself made clear that he wanted to find a place for Mr. Tribe, according to interviews with administration officials who would speak only on the condition of anonymity. But for those putting together the staff, figuring out what to do with Mr. Tribe was difficult.

The Times in 2010 suggested that Tribe could not be put up for a position that requires Senate confirmation–an impossible vote after his opposition to Judge Bork’s nomination.

For that reason, officials decided that Mr. Tribe could not be given a position that would require Senate confirmation, like solicitor general, because Republicans would probably go to war against him, with decades of legal writings to mine for ammunition.

But then they hint what was really up–confirmed by the recent profile of Tribe.

There was also concern over how his presence might play out internally, several administration officials said. Some officials feared that he might be unmanageable, intruding into all manner of policy areas and able to call on Mr. Obama as a trump card.

“He has an ego,” said Charles Fried, a former solicitor general in the Reagan administration and a fellow Harvard law professor. “He’s entitled to it. He’s earned it.”

Even with this low position, some expected the close relationship would help–and it was this close relationship that doomed Tribe’s prospects.

Still, several of his Harvard colleagues noted that he may wield unofficial influence because of relationships with former students and protégés throughout the government — not least with Mr. Obama.

“When the president of the United States respects your views, that conveys more authority than a title,” said Alan M. Dershowitz, a Harvard law professor.

Back to 2015, the New York Magazine article reports that members of the Administration resented Tribe’s close relationship with the President.

Still, some colleagues remained resentful of his relationship with the president. Obama occasionally summoned him to the Oval Office to talk about abstract issues of law, but even those rare interactions created friction.

Perhaps the most striking event was when Rahm Emanuel–who earned his nickname of “The Godfather“–gave Tribe a talking-to.

“Rahm Emanuel pulled me aside at a party at the W Hotel,” Tribe recalls. “He said, ‘I heard you went to the Big Guy behind my back.’ ”

The low point of his stint in the presidency came to a head when Ed Whelan posted on his blog a letter Tribe wrote that was very critical of then-Judge Sotomayor. Tribe urged the President to nominate his close confidante Elena Kagan. This letter further worsened Tribe’s standing in the Administration.

Kagan and Sotomayor were both on the Court by the time the letter emerged in late 2010, so it only served to damage its author. Citing his health, Tribe soon resigned.

Curiously, the 2010 Times article offers these prescient comments:

Mr. Tribe’s friends said that if he felt he could not do something meaningful in Washington, he would quit.

“If Larry Tribe is in any way viewed as — or is in fact — only window dressing,” Mr. Ogletree said, “then I have no doubt that he would resign from that position and return to Cambridge in a New York minute.”

The New York Magazine article quotes Tom Goldstein as suggesting that someone in the White House leaked it.

“I assume someone in the administration leaked it to injure Larry,” Tom Goldstein says.

Ed Whelan–who I doubt is buddy-buddy with the Obama White House–suggests Goldstein’s speculation is absurd.

I’ve already said all that I’m going to say on who my source was. But I can’t say that it strikes me as reasonable to assume that someone in the Obama administration would choose me to leak to.

Goldstein also said in 2010 that Tribe was happy with his position at DOJ:

And Thomas C. Goldstein, a prominent Supreme Court lawyer who has worked with Mr. Tribe for more than a decade, said Mr. Tribe had described himself as happy and busy with the job, which he assumed in March.

Not so much.

In any event, Tribe closes by noting that he hasn’t spoken to the President since 2011 or so–not at all during his second term in office.

Tribe told me he hasn’t spoken to the president in almost four years and hasn’t had any direct communication with the White House about the EPA case. “It’s all mean anonymous quotes,” he says. But he would very much like to know how Obama regards him today. “Do you really think that Barack or people close to him are pissed at me?” Tribe recalls asking his former research assistant Ron Klain, who was Vice-President Biden’s chief of staff. “He said, ‘No, I think they realize that your credibility when you’re on their side is enhanced by the fact that you’re not always on their side.’ ”

“He’s assuming a largeness of spirit,” he says, “that may or may not be there.”

What a fascinating insight into how administration politics work.

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Jul 28, 2015

GW Drops SAT Requirement To Achieve More Diverse Class, Proves Justice Thomas’s Grutter Dissent Correct

The Washington Post reports that George Washington University will no longer require applicants to take the SAT or ACT. Why? Because “standardized tests are a barrier to recruiting disadvantaged students” and the exams are “culturally biased and often fail to reflect academic potential.” Not even the “holistic” approach–blessed by the Court in Grutter–can accomplish enough diverse students:

“Although we have long employed a holistic application review process, we had concerns that students who could be successful at GW felt discouraged from applying if their scores were not as strong as their high school performance,” said Dean of Admissions Karen Stroud Felton. “We want outstanding students from all over the world and from all different backgrounds – regardless of their standardized scores – to recognize GW as a place where they can thrive.”

Specifically, GW thinks the SAT discourages minority students from applying to more selective schools, out of a fear they won’t get in.

But GWU officials said that in recent years they have grown worried that their efforts to diversify were hitting obstacles. They feared that some students with strong records in high school were not applying because of a misguided perception that their scores weren’t good enough.

Translation: the applicant pool of diverse students is not big enough.

“We want those students to have us on their radar, and not self-select out of the pool,” said Laurie Koehler, GWU’s senior associate provost for enrollment management. That is the primary reason for GWU’s policy shift, which takes effect for students seeking admission for fall 2016. …

GWU wants to raise its national profile and diversify its student body. With a full price of more than $62,000 for tuition, fees, room and board, GWU provides significant grants to students in need. Fourteen percent of undergraduates receive need-based federal Pell grants. Fourteen percent also are black or Hispanic.

GW is not alone. Wake Forest University also dropped the standardized test requirement to recruit more minority students.

Wake Forest University, 27th on the national university list, said it has recruited more minority students since announcing a test-optional policy in 2008. “We find much more value in a student’s accomplishments in four years of high school than in four hours of Saturday testing,” said Martha Blevins Allman, dean of admissions at the private university in Winston-Salem, N.C.

If this argument seems familiar to readers of this blog, it should. In his dissent in Grutter v. Bollinger, Justice Thomas contends that if schools really want to increase diversity–and this is indeed a “compelling” interest that satisfies strict scrutiny under the Equal Protection Clause–then there is a much easier way of accomplishing this goal then using race-based preferences: drop the discriminatory admission criteria. Thomas cites the success of historical black colleges that do no have stringent admission criteria. But of course, Thomas writes, “elite” schools will not do this as it will impact their academic selectivity.” Instead, they turn to affirmative action as a way to keep their elite rankings, and admit more minority students, without harming their overall academic standing.

Read this passage carefully.

One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.” Brief for Respondents Bollinger et al. 33—36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status.4

4.  The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of “diversity” are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School’s reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

And this as well–the GW Dean basically concedes Thomas’s point.

  The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions “standards” that, in turn, create the Law School’s “need” to discriminate on the basis of race. The Court validates these admissions standards by concluding that alternatives that would require “a dramatic sacrifice of … the academic quality of all admitted students,” ante, at 27, need not be considered before racial discrimination can be employed.6 In the majority’s view, such methods are not required by the “narrow tailoring” prong of strict scrutiny because that inquiry demands, in this context, that any race-neutral alternative work “ ‘about as well.’ ” Ante, at 26—27 (quoting Wygant, 476 U.S., at 280, n. 6). The majority errs, however, because race-neutral alternatives must only be “workable,” ante, at 27, and do “about as well” in vindicating the compelling state interest. The Court never explicitly holds that the Law School’s desire to retain the status quo in “academic selectivity” is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III—B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system–it cannot have it both ways.

    With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, see Brief for United States as Amicus Curiae 13—14, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. The Law School concedes this, but the Court holds, implicitly and under the guise of narrow tailoring, that the Law School has a compelling state interest in doing what it wants to do. I cannot agree. First, under strict scrutiny, the Law School’s assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference, grounded in the First Amendment or anywhere else. Second, even if its “academic selectivity” must be maintained at all costs along with racial discrimination, the Court ignores the fact that other top law schools have succeeded in meeting their aesthetic demands without racial discrimination.

CT is exactly right. Every time I teach Grutter, I always have several students (some who were accepted to UT Austin through the Top 10% plan, which itself is race conscious) argue that SAT is a bad indicator of academic performance, and it should be scrapped.

GW has now scrapped it, and may experience an increase in the minority applicants.

Totally aside from the constitutional issue, how does this affect U.S. News rankings? If a student doesn’t have an SAT score to report, then it can’t possibly factor in the school’s median SAT numbers for purposes of rankings. They still have a GPA though, so that factors in.

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Jul 27, 2015

Why people don’t like puns

I tell a lot of puns. Some people like them. Other people groan. Others hate them. This article in The Atlantic provides an interesting discussion of the varied treatment towards puns. This explanation, I’m sure, will make sense to those who like puns, and make those who dislike puns groan even more:

But the plight of any dictionary-writer is the inherent fluidity of language, which is the pun-trepreneur’s delight.

“Puns are threatening because puns reveal the arbitrariness of meaning, and the layers of nuance that can be packed onto a single word,” says John Pollack, a communications consultant and author of The Pun Also Rises. “So people who dislike puns tend to be people who seek a level of control that doesn’t exist. If you have an approach to the world that is rules-based, driven by hierarchy and threatened by irreverence, then you’re not going to like puns.”

Peter McGraw, the director of the Humor Research Lab at the University of Colorado, Boulder, has a theory about what makes things funny. He calls it a benign violation—something that subverts or threatens a norm, but not in a way that feels harmful. Puns would fall under the pun-brella of communication violations, though both Pollack and McGraw point out that they’re often more about getting an “Aha!” than a “Haha!”

“They can be a demonstration of wit, of cleverness,” McGraw says. “You’re relying on a person’s ability to parse language, to understand the nuances and complexities of words.”

I will keep using puns, rules be damned.

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Jul 27, 2015

National Law Journal on Atticus in “Go Set A Watchman”

The National Law Journal asked several LawProfs for their reactions to the “Atticus” in Go Set a Watchman. Here are my (brief) quotes:

“How many of us would stare down a lynch mob to protect their client? Would you be willing to risk your life for a client?”

“I think we should read [‘Watchman’] on it s own and not let it sully Atticus Finch as a character.”

Also, George Mason LawProf Michael Krauss–who taught me about the triumph and failings of Atticus in To Kill A Mockingbird–offers this remark:

“He’s a classic hero. He’s a father. He’s a defender of the weak. He does work for barter for the poor. He believes absolutely in integrity.”

You can read my extended comments on GSAW here and here.

Update: Karen Sloan wrote a second piece at NLJ that quotes Michael and me at some greater length:

Michael Krauss, who discusses Finch in his legal ethics courses at George Mason University School of Law, decided not to read “Watchman” because of unfavorable reviews. “To me, it’s irrelevant. I get everything about the practice of law — about good, about evil, about the importance of truth — I get it all in this marvelous book,” he said referencing “Mockingbird.” Krauss never viewed “Mockingbird”‘s Finch as the perfect lawyer — the character’s focus on the truth perhaps doomed his client in court. “Atticus wanted to use [his client] Tom Robinson’s case to teach Maycomb a lesson about its racism — to show Maycomb in its heart what it really was, and he succeeded,” Krauss said. “But is that one’s duty to one’s client?”

Josh Blackman, a constitutional law professor at the South Texas College of Law, read the pages of “Watchman” in which Jean Louise and Finch discuss their reactions to Brown v. Board of Education, but was discouraged from finishing the book by friends who warned it would “break my heart.” He views the two Finches as utterly distinct, citing factual discrepancies between the novels, as when Robinson — found guilty in “Mockingbird” — wins acquittal in a brief flashback in “Watchman.”

“People are sensitive to these kinds of things, and it’s not inconceivable that they will punish this fictional character for these subsequent actions,” Blackman said. “If I get a vote, judge Atticus Finch by ‘To Kill a Mockingbird.’ The Atticus Finch in ‘Go Set a Watchman’ is a different character with the same name.”

Still, “Watchman” accurately captures the way many people viewed school segregation at the time, Blackman said. Jean Louise and Atticus agree that the Supreme Court bulldozed over states’ rights — although Jean Louise also says the court “had to do it.”

“There was a fairly popular thought back then that integration will take its own time and course and that you can’t force it,” Blackman said. “It’s foreign to people today, but it’s not irreconcilable that you could be in favor of equality of the races, but on its own time.”

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Jul 27, 2015

Google+ Photos Facial Recognition Recognizes The Justices and their Drawings

Google+ Photos has a cool (and slightly creepy) feature that automatically groups together all of the photographs of an individual person. The facial recognition technology is remarkable. Somehow, it knew that my grandfather in 1965 (at my Dad’s Bar Mitzvah) and my grandfather at the age of 92 were the same person. It even works if a person is wearing sunglasses, a hat, and a different haircut.

Perhaps even more impressively, Google was able to match photographs of the Justices with drawings of the Justices. (What, you don’t have pictures of the Justices in your photo library?).

Specifically, Google matched the portrait of Justices Ginsburg, Sotomayor, and Kagan with their actual photographs.

Here you can see the side-by-side comparisons for Kagan with her portrait that now hangs in the National Portrait Gallery.




Google also matched up the Portrait with a picture of a CSPAN Broadcast of McCutcheon v. FEC that included RBG’s drawing on CSPAN.


In case you were curious, I took the photo at a then-closing Blockbuster Video (you can see the DVDs below the TV), most for posterity’s sake–don’t ask why I take pictures of these things).

Even cooler, Google matched up a picture of RBG with an authentic Art Lien CourtArist.com sketch. How’s that for realistic!



Perhaps the coolest link is that Google matched RBG’s High School Yearbook with a photo of her four decades later as a Justice.


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Jul 24, 2015

Texas Supreme Court Grants Mandamus in Houston LGBT Ordinance Case

The Houston Charter provides a very unique form of direct democracy.  If the City Council passes an ordinance, Houstonians may submit a referendum petition supporting its repeal. If the referendum is signed by the requisite number of voters, the City Secretary must certify those results. After the City Secretary certifies the results, the City Council must either repeal the ordinance, or place a repeal vote on the ballot in the following election. Through this mechanism, Houstonian voters are able to repeal laws passed by the City Council.

Last year the Houston City Council enacted the Houston Equal Rights Ordinance (“HERO”) which prohibits certain forms of discrimination against LGBT people. This Ordinance proved to be controversial, and many citizens mobilized to petition for its repeal. What happened next gets complicated.

The City Secretary determined that the petitioners had enough signatures, but the City Attorney (who is appointed by the mayor) conducted an independent review, and found that a majority of the signatures were void, and could not be counted. The leaders of the referendum movement then sought a petition in court to declare that enough signatures were collected, and the City Council must either repeal the ordinance, or place it on the November 2014 ballot. During this process, you may recall that the City (represented by Sussman Godfrey) sent subpoenas to several pastors, asking them for copies of their sermons. (Cooler heads prevailed, and after a motion to quash by ADF, those subpoenas were withdrawn). Also, the signatures of 50,000 people who signed the petition were posted online.

The trial court did not provide the referendum leaders with the relief they sought, and the court of appeals could not resolve the case in time for the November 2015 ballot. So the referendum leaders sought mandamus from the Texas Supreme Court. Today, without oral argument, the Court issued a Per Curiam decision granting mandamus, and ordered the city council to either repeal the ordinance, or put it on the ballot.

Despite the controversial nature of the case, the analysis was fairly routine.

First, the court held, that according to the law, only the City Secretary, not the City Attorney, has any role in certifying if the signatures are valid.

The Charter requires the City Secretary to “certify” her findings, and the only findings she expressly certified were her own.7 The City Attorney may, no doubt, give legal advice to the City Secretary, but he cannot assume her duties. Though the City Secretary’s report mentions the City Attorney’s findings, the City Secretary did not adopt the City Attorney’s findings as her own, review the substance of his findings herself, or certify the inadequacies to the City Council.

Second, once the City Secretary certifies the signatures are sufficient (as she did in this case), the City Council has a “ministerial” role of repealing the ordinance, or placing the issue on the ballot. There is no discretion.

Once the City Council received the City Secretary’s certification, it had a ministerial duty to act. According to the Charter, following the City Secretary’s certification, “the Council shall immediately reconsider such ordinance or resolution and, if it does not entirely repeal the same, shall submit it to popular vote at the next city general election.” Houston, Tex., Charter, art. VII-b, § 3. The Charter gives the City Secretary, not the City Council, the discretion to evaluate the petition. Simply put, the City Secretary’s certification started the process outlined in the Charter for reconsidering ordinances following a referendum petition, invoking the Council’s ministerial duty to carry out its obligations.8

Third, even if the City Council suspects that some of the signatures are invalid, they still have “no discretion to re-evaluate the petition.”

But what of the City Council’s complaints of forgery, false oaths, and the like? Although these issues were addressed at trial and are now pending before the court of appeals, we note that the City Secretary never claimed the referendum petition was plagued by forgery or perjury. Yet the City Council decided, of its own accord, not to act, disregarding the City Secretary’s certification that the petition had enough signatures. The Charter, however, gives the City Council no discretion to re- evaluate the petition; instead, it requires “immediate[]” action by the City Council following the City Secretary’s certification. To give authority to the “council to make the ultimate determination of sufficiency of the petition would commit the decision to a body that could not be considered impartial.” Howard, 589 S.W.2d at 750.9

Fourth, the only option once the City Secretary has certified the signatures is to repeal the ordinance, or put it on the ballot.

If the City Council cannot independently evaluate the petition as a predicate to its ministerial duty to act, then it may not decide for itself that the petition is invalid and force the petition organizers to sue. Faced with the City Secretary’s certification, the City Council had no discretion but to repeal the ordinance or proceed with the election process. If the City Council believed the City Secretary abused her discretion in certifying the petition or otherwise erred in her duties, it was nevertheless obligated to fulfill its duties under the Charter and thereafter seek any affirmative relief to which it might be entitled. But the City Council did not do so. Instead, it refused to fulfill its ministerial duty, forcing the petition organizers to file suit.

In conclusion, the Court suspended the enforcement of the ordinance, and ordered the City Council to follow through on their ministerial duty.

The City Council is directed to comply with its duties, as specified in the City Charter, that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance by August 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election. The writ will issue only if the City Council does not comply.

This issue will now be placed on the ballot for November 2015, as it is extremely unlikely the City Council will repeal a law they recently enacted.



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Jul 23, 2015

“The Equality Act” Prohibits Defenses Under RFRA

Today, several members of Congress introduced “The Equality Act,” which prohibits several forms of LGBT discrimination in employment, housing, and other areas. Section 1107 of the Act states very clearly that RFRA will not provide any defense to a claim under the act.

‘‘The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim con- cerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or en- forcement of a covered title.’’

Sponsors of the law commented to Buzzfeed:

Addressing religious liberty, the Equality Act would bar individuals from citing the Religious Freedom Restoration Act as a defense in cases allege discrimination against any protected class. Noting that he was not lawyer, Merkley could not predict how courts would rule but he believed the federal law would also prevent individuals or companies from using state religious freedom laws as a defense in discrimination cases.

“I think the vision is that if you are in the baking business and you are in a commercial public offering setting, you cannot say, ‘I am only going serve Caucasians and not people of other races,’” he said. Likewise, Merkley continued, “You can’t say, ‘I am not going to serve people who I perceive to be part of the LGBT community.’ You are not compelled to be in the baking business. And you are certainly not compelled to be in the wedding cake business, and if you are in that business, your door is equally open.”

“Open for business means open for business for all,” Sen. Tammy Baldwin, the only out LGBT senator and another leader on the bill, said at the briefing.

Cicilline also addressed recent criticism, which has been expressed by some conservatives, that an LGBT bill could be a gateway to limits on religious freedom. “There is not nor could there ever be a law would require a religious institution, a church or synagogue or mosque, to violate their religious freedom to engage in marriage,” he said in the briefing.

“It cannot happen. It will not happen,” he continued. “There is nothing in this bill that attempts to make that happen.”

By eliminating RFRA as a defense, the statute would leave only the Free Exercise clause as a backstop for religious liberty claims.

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Jul 23, 2015

DHS Proposed Immigration Rulemaking (Updated)

Update: After discussions with several colleagues, I realize that my initial reading was not the best reading of the regulation. Please read the below post, then come back up to this update.

The key language–and this is not clear on my first reading–is “statutorily eligible.”

DHS proposes to expand its current provisional waiver process in two principal ways. First, DHS would eliminate current limitations on the provisional waiver process that restrict eligibility to certain immediate relatives of U.S. citizens. Under this proposed rule, the provisional waiver process would be made available to all aliens who are statutorily eligible for waivers of inadmissibility based on unlawful presence and meet certain other conditions.

The only way to read this regulation consistently with the INA is that the phrase “statutorily eligible” refers back only to the statutory authority to issue waivers under 8 U.S.C. 1182(a)(9)(B)(v). In other words, this provision does not expand the category of aliens who can petition for a waiver, as DHS is still bound by the statute. The only thing that this rulemaking changes is who can be used to demonstrate the “extreme hardship.” But this category of relatives is still bound by the statute. Under the statute, a hardship to citizen children (as would be the case with DAPA beneficiaries) would not be sufficient to justify a waiver.

I apologize for any confusion offered by the below analysis. The proposed regulation was not clear with who would be covered, and it took me a few hours before I finally was able to parse the language.


Original Post:

The Obama Administration is expanding the number of aliens who can seek a waiver from a removal requirement by disregarding clear congressional limitations on who is relevant. The Washington Free Beacon has a decent summary, but (sorry) you will have to read this long post to understand exactly what will be changed.

Under 8 USC § 1182(a)(9)(B)(i)(II), an alien who has been “been unlawfully present in the United States for one year or more” is barred from seeking admission until “10 years of the date of such alien’s departure or removal from the United States.” In other words, if an alien is in the United States illegally for more than a year, before applying for what is known as an “adjustment of status,” the alien would have to leave the United States for a decade, and (generally) apply for consular proceedings in his or her home country. This is a significant statutory bar that Congress created to punish those who entered the country unlawfully, and makes it extremely difficult for that person to eventually obtain a Green Card.

Congress crafted a series of exemptions to the so-called “Ten Year Bar” in 8 USC § 1182(a)(9)(B)(iii). Time spent in the United States when an alien was under 18 doesn’t count towards the one-year limit. Further, time spent while as an asylum applicant, as a beneficiary of  family unit protection, as a battered woman, or as a victim of severe trafficking, will not count towards the one-year limit. In 8 USC § 1182(a)(9)(B)(iv), Congress allows for tolling if the alien was “lawfully admitted” into the United States (this involves an inspection at the border), filed a “nonfrivolous application” for a change of status, and was not “employed without authorization.” Even then, the tolling is “not to exceed 120 days.”

Most importantly for our purposes is 8 USC § 1182(a)(9)(B)(v), which provides the Attorney General with limited and constrained authority to waive the ten-year bar. It provides:

(v)Waiver The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

There are several requirements, specifically carved out in the statute. First, the discretion only applies to “an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence.” It does not apply to an immigrant who is the parent, sister, brother, cousin, niece, nephew, etc. of a U.S. Citizen. Specifically, Congress disfavors offering status to the parents of U.S. Citizens due to the fact that natural-born citizens receive birthright citizenship under the Fourteenth Amendment. Second, assuming the correct relationship is established, the alien must show the Attorney General how his or her refusal of admission “would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.” Again, this only applies to the “spouse or parent,” and not children. Further, “extreme hardship” is one of the highest burdens that must be established in immigration law. This isn’t easy to satisfy.

The Obama Administration’s proposed rulemaking blows up each of these two restrictions on DHS’s power to grant waivers (I understand the Secretary of Homeland Security, and not the Attorney General now exercises this authority). The summary from the rulemaking offers a helpful explanation:

DHS proposes to expand its current provisional waiver process in two principal ways. First, DHS would eliminate current limitations on the provisional waiver process that restrict eligibility to certain immediate relatives of U.S. citizens. Under this proposed rule, the provisional waiver process would be made available to all aliens who are statutorily eligible for waivers of inadmissibility based on unlawful presence and meet certain other conditions. Second, in relation to the statutory requirement that the waiver applicant demonstrate that denial of the waiver would result in “extreme hardship” to certain family members, DHS proposes to expand the provisional waiver process by eliminating the current restriction that limits extreme hardship determinations only to aliens who can establish extreme hardship to U.S. citizen spouses or parents. Under this proposed rule, an applicant for a provisional waiver would be permitted to establish the eligibility requirement of showing extreme hardship to any qualifying relative (namely, U.S. citizen or lawful permanent resident spouses or parents).

The proposed rule disregards the statute in two ways.

First, Congress limited those who can seek waivers to aliens who are the “the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence.” Under the proposed rule, any alien can seek a waiver so long as he or she is “statutorily eligible for waivers of inadmissibility based on unlawful presence and meet certain other conditions.” No longer must the alien be the “spouse or son or daughter” of the citizen of LPR. The rule nullifies the language from Congress restricting who can apply for a waiver, as they no longer need to have the citizen-relation.

Second, Congress specified that the alien who is seeking a waiver must show why the refusal of admission “would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.” However, under the proposed rule, the alien “would be permitted to establish the eligibility requirement of showing extreme hardship to any qualifying relative (namely, U.S. citizen or lawful permanent resident spouses or parents).” The “extreme hardship” must no longer affect the “spouse or parent,” but applies to “any qualifying relative.” The rule offers an example, such that a “citizen son or daughter”–who is not a “spouse or parent”–could be the one who suffers the “extreme hardship.”

For example, an alien who is the beneficiary of an immediate relative petition filed by his or her U.S. citizen son or daughter—who is not a qualifying relative for purposes of the waiver—could seek a provisional waiver based on extreme hardship that would be suffered by the alien’s LPR spouse.

It is extremely likely that the removal of a care-taking parent would work an “extreme hardship” on a minor citizen child, in ways that the removal of a son or daughter would not. This greatly expands who is eligible for the waiver.

This rule nullifies the language from Congress limiting the scope of the hardship exception.

What are the benefits of this rule?

DHS also believes that the proposed expansion would reduce the hardship that U.S. citizen and LPR families experience as a result of separation from their alien relatives.

The ten-year bar was designed as a deterrent to illegal immigration.

Where does the government get the authority to disregard the clear language of 8 USC § 1182(a)(9)(B)(v)? Why 8 USC § 1182(a)(9)(B)(v) of course, combined with our favorite 8 U.S.C. 1103 which apparently justifies anything the Secretary wants. Here is the “legal authority” section of the rule (one paragraph in a 56 page document):

Section 102 of the Homeland Security Act of 2002 (Public Law 107-296, 116 Stat. 2135), 6 U.S.C. 112, and section 103 of the Immigration and Nationality Act (INA), 8 U.S.C. 1103, charge the Secretary of Homeland Security (Secretary) with the administration and enforcement of the immigration and naturalization laws of the United States. The Secretary proposes the changes in this rule under the broad authority to administer the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authorities. The Secretary’s discretionary authority to waive the unlawful presence grounds of inadmissibility is provided in INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). See also Homeland Security Act of 2002, sec. 451(b), 6 U.S.C. 271(b) (transferring to the Director of USCIS the immigration benefits adjudication functions of the Commissioner of the former Immigration and Naturalization Service).

The fact that DHS is pursuing a rule-making suggests that they have learned their lesson from Texas v. United States. By seeking comments, DHS can quietly release the final rule right before the change in administration. So long as the APA is complied with, potential challengers would be limited in the nature of suit that can be filed. In the past, this would have been announced by memorandum. At least here, we have the option to review the policy 60 days after it is announced. If nothing else, one salutary benefit of Texas’s challenge (which I’ve supported as amicus curiae) has been the decision to forego the executive memoranda.

This rulemaking comes on the heels of a Washington Post story from earlier this month, suggesting that DHS agents will now focus exclusively on criminals.

The Obama administration has begun a profound shift in its enforcement of the nation’s immigration laws, aiming to hasten the integration of long-term illegal immigrants into society rather than targeting them for deportation, according to documents and federal officials.

In recent months, the Department of Homeland Security has taken steps to ensure that the majority of the United States’ 11.3 million undocumented immigrants can stay in this country, with agents narrowing enforcement efforts to three groups of illegal migrants: convicted criminals, terrorism threats or those who recently crossed the border.

While public attention has been focused on the court fight over President Obama’s highly publicized executive action on immigration, DHS has with little fanfare been training thousands of immigration agents nationwide to carry out new policies on everyday enforcement. But the shift in DHS’s enforcement priorities, which are separate from the DAPA program and have not been challenged in court, could prove even more far-reaching.

The new policies direct agents to focus on the three priority groups and leave virtually everyone else alone. Demographic data shows that the typical undocumented immigrant has lived in the United States for a decade or more and has established strong community ties.
Although the new measures do not grant illegal immigrants a path to citizenship, their day-to-day lives could be changed in countless ways. Now, for instance, undocumented migrants say they are so afraid to interact with police, for fear of being deported, that they won’t report crimes and often limit their driving to avoid possible traffic stops. The new policies, if carried out on the ground, could dispel such fears, advocates for immigrants say. In describing the initiatives, Homeland Security Secretary Jeh Johnson has echoed the language often used by advocates of comprehensive immigration reform, which remains stalled on Capitol Hill.“We are making it clear that we should not expend our limited resources on deporting those who have been here for years, have committed no serious crimes, and have, in effect, become integrated members of our society,” Johnson said in a recent speech in Houston. He added, “These people are here, they live among us, and they are not going away.”
Since the new policies took effect in January, Johnson’s instructions have been conveyed to agents throughout the department. “We decided we’re going to draw a clear line between individuals who now have significant equities in the country versus those who are recent entrants,” said one department official, who spoke on the condition of anonymity to describe internal deliberations.
“If people are not an enforcement priority,” the official said, “. . . bottom line, the secretary has said don’t go after them.”
Deportations, for example, are dropping. The Obama administration is on pace to remove 229,000 people from the country this year, a 27 percent fall from last year and nearly 50 percent less than the all-time high in 2012.
Fewer people are also in the pipeline for deportation. The number of occupied beds at immigration detention facilities, which house people arrested for immigration violations, has dropped nearly 20 percent this year.

And on Johnson’s orders, officials are reviewing the entire immigrant detainee population — and each of the 400,000 cases in the nation’s clogged immigration courts — to weed out those who don’t meet the new priorities. About 3,000 people have been released from custody or had their immigration cases dropped, DHS officials said.

Yesterday, the New York Times reported that under these new policies, 87% of immigrants face no threat of removal.

Under new immigration enforcement programs the Obama administration is putting in place across the country, the vast majority of unauthorized immigrants — up to 87 percent — would not be the focus of deportation operations and would have “a degree of protection” to remain in the United States, according to a report published Thursday by the Migration Policy Institute, a nonpartisan research group in Washington.

The report found that about 13 percent of an estimated 11 million immigrants without papers, or about 1.4 million people, have criminal records or recently crossed the border illegally, making them priorities for deportation under guidelines the administration announced in November and put into effect July 1. The new program is likely to result in a drop in overall deportations from inside the country by as much as 25,000 a year, the report finds, but an increase in deportations of immigrants who were convicted of serious crimes, pose national security threats or were caught crossing the border illegally.

If I may offer a synthesis of the Obama Administration’s policies towards immigration, DHS has systematically eliminated the requirement to ever remove aliens, unless they are a criminal.  The argument that DAPA is justified by a lack of resources to deport all aliens subject to deportation was always ludicrous, but now it is apparent this argument is but a mere veneer. The President has determined that Congress’s statutes and policies do not match his, so he is systematically dismantling them.


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Jul 20, 2015

9th Circuit Invites DOJ To Brief Whether DACA Violates Take Care Clause

I previously blogged about the 9th Circuit’s arguments in the Arizona Dream Act Coalition case, that involves (indirectly) the legality of DACA (not DAPA). Today, the 9th Circuit issued supplemental briefing about DACA and the Take Care Clause. More importantly, they invited DOJ to file a brief of whether DACA violates the Take Care clause.

In light of the foregoing, the parties are ordered to file simultaneous supplemental briefs within fourteen (14) days of the date of this order, addressing: (1) Whether any issue of preemption is properly before this court, if so,

what it is, and how it should be resolved, and whether it is appropriately addressed as a threshold matter before reaching Plaintiffs’ equal protection claim, to avoid ruling on constitutional grounds; and

(2) Whether the DACA program violates the separation of powers doctrine and/or the Take Care Clause.

The panel invites the United States to file an amicus curiae brief expressing its views on these issues. The amicus brief should be filed no later than seven (7) days after the parties have filed their supplemental briefs. See Fed. R. App. P. 29. In the event the United States chooses not to file an amicus brief, the court requests that the United States notify the Clerk, in writing, as soon as that decision is made.

This is significant, because it potentially tees up something of a Circuit Split. The Fifth Circuit stay panel in Texas v. United States did not reach the constitutional issue, but the merits panel may. (Judge Elrod asked several questions about it during oral arguments, and directly inquired what level of Youngstown DAPA belongs in). If the Ninth Circuit reaches the Take Care clause, it will focus on DACA, not DAPA. However, much of the record in Texas v. United States focuses on DACA. In any event, this is something to keep an eye on.

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Jul 20, 2015

Kozinski: “Timidity [for aspiring judges] may result in its own kind of failure.”

Ron Collins interviews Judge Alex Kozinski concerning his “Ten Commandments” to become a federal judge by the age of 35. One suggestion stood out:

Question: What do you think of an 11th “Commandment”: Whatever else you do, avoid writing anything on any potentially controversial topic (e.g. capital punishment, criminal justice, abortion, campaign finance, gay rights, women’s rights, corporate rights, environmental protection, etcetera).

Kozinski: I’m not so sure. You do have to do something to be noticed. Timidity may result in its own kind of failure.

In response to the increasingly-contentious confirmation hearings, there seems to be a rising perception that judicial nominees who have written on controversial topics are non-starters. As a result, those who aspire to become judges (the “Little Supremes“) may get the message that the safest passageway to Article III is to go the way of John Roberts or Elena Kagan–be successful and well-liked, but never take a controversial position on anything to make your confirmation hearing as simple as possible. (Both attended Federalist Society meetings, but neither were members). I think this is a serious mistake. Being milquetoast won’t get you noticed–especially when done so deliberately to avoid saying anything that could raise eyebrows.

But even more troubling, this pattern of going incognito deprives our society of some of the greatest legal minds. As Pamela Karlan–a brilliant attorney who the Obama Administration didn’t fight for a federal judgeship–explained, “trimming your sails” simply isn’t worth it.

Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime. Sure, I’ve done lots of things I regret over the years. But the things I regret aren’t the things that keep someone from being nominated or getting confirmed. I regret being unkind to people I love and respect and admire. I regret getting frustrated by little things. I regret never taking a summer off. I regret not being able to stick to a diet. But I don’t regret taking sides on questions involving the Voting Rights Act. I don’t regret helping to defend the constitutional rights of criminal defendants. I don’t regret litigating cases on behalf of gay people. I don’t even regret being sort of snarky.

Take a person like Eugene Volokh for example. Eugene is one of the greatest scholars of our generation, and over two-plus decades, he has written thousands of articles, blog posts, and op-eds on every legal topic you can imagine. The Ninth Circuit would benefit immensely from his appointment. However, think about his nomination from the White House’s perspective. Actually vetting every single blog post is practically impossible. No matter at how closely you read every single thing Eugene wrote, Media Matters and the Center for American Progress will find some obscure comment, when taken out of context, paints Eugene in a bad light. It’s what they do best. A shaky White House Counsel may simply say, “Nah. Not worth it. Let’s go with someone safer whose record is simple.” Pure applesauce.

The Executive Branch should fight to appoint exceptionally qualified jurists who have expressed themselves, rather than ciphers who have kept their nose clean in the hopes of one day getting appointed. The cipher problem is especially problematic for the advocate-nominee, who always represented a client’s views, and never articulated their own views. I’m looking at you John Roberts.

Leading up to 2016, this is a topic that should receive more thought. Perhaps one of the few benefits of the nuclear option is that Presidents no longer need to seek 60 votes for their nominees. The fifty-vote threshold, on the margin, should allow more qualified nominees with records to make it through the Circuit Court–but not Supreme Court–nomination process.

I am reminded of a book review written in 1996, in response to a book by Steven Carter about the Supreme Court nomination process, titled The Confirmation Mess.

This excerpt highlights that vapid confirmation hearings where nothing is discussed, gives a benefit to nominees who lack paper trails. In contrast, in substantive hearings where the issues are engaged, the nominee without a paper trail (perhaps a member of the Little Supremes) would have no advantage over the candidate with a prolific record. Indeed, the dynamics would be switched, so candidates with paper trails would be advantaged.

Further, a commitment to address substantive issues need not especially disadvantage scholars and others who have left a “paper trail,” as the received wisdom intones and Carter accepts (p 38). The conventional view is that substantive inquiry promotes substantive ciphers; hence the hearings on Robert Bork led to the nomination of David Souter. But this occurs only because the cipher is allowed to remain so–only because substantive questioning is reserved for nominees who somehow have “opened the door” to it by once having committed a thought to paper. If questioning on substantive positions ever were to become the norm, the nominee lacking a publication record would have no automatic advantage over a highly prolific author. The success of a nomination in each case would depend on the nominee’s views, whether or not previously expressed in a law review or federal reporter. Indeed, a confirmation process devoted to substantive inquiry might favor nominees with a paper trail, all else being equal. If there was any reason for the Senate to have permitted the testimonial demurrals of Justices Breyer and Ginsburg, it was that their views already were widely known, in large part through schol- arship and reported opinions–and that those views were widely perceived as falling within the appropriate range. When this is so, extended questioning on legal issues may seem hardly worth the time and effort. [FN30] More available writing thus might lead to less required testimony in a confirmation process committed to sub- stantive inquiry.

The author of this review, of course, is Elena Kagan. Confirmation Messes 62 U. Chi. L. Rev. 919 (1995).

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Jul 20, 2015

Goldsmith: “Don’t blame the President for doing something legally sketchy when he is exercising clear authorities.”

Jack Goldsmith writes that the President is doing nothing by seeking a vote from the U.N. Security Council on the Iran deal before the 60-day review period afforded to Congress under the Iran Nuclear Agreement Review Act.

The President’s team cleverly stitched together the President’s authority to lift domestic sanctions, his authority to make political agreements, and his authority to vote for the United States in the Security Council, in order to make sure the Iran Deal would stick unless supermajorities of Congress reject it.  Don’t blame the President for doing something legally sketchy when he is exercising clear authorities.  And don’t blame the Iran Review Act for seeking to delay the President from exercising some of these authorities.

Isn’t this just the mantra of the Obama Presidency? Although, in my estimation, the “sketchiness” of the action far exceeds the “clarity” of authorities.

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Jul 19, 2015

Obama Administration To Block Social Security Recipients From Buying Guns If They Can’t Balance A Checkbook

After President Obama failed to achieve any gun control legislation in the aftermath of Sandy Hook, he ordered his administration to take a series of executive actions to limit access to guns. At the time, most of the proposals seemed relatively limited in scope. But now, the ramifications of those actions are coming to light.

The Los Angeles Times reports–in a somewhat murky story without details–that the Obama Administration is incorporating the social security database into the National Instant Criminal Background Check System, so that people who “lack the mental capacity to manage their own [financial] affairs” will no longer be able to acquire firearms.

Seeking tighter controls over firearm purchases, the Obama administration is pushing to ban Social Security beneficiaries from owning guns if they lack the mental capacity to manage their own affairs, a move that could affect millions whose monthly disability payments are handled by others.

The push is intended to bring the Social Security Administration in line with laws regulating who gets reported to the National Instant Criminal Background Check System, or NICS, which is used to prevent gun sales to felons, drug addicts, immigrants in the country illegally and others.

A potentially large group within Social Security are people who, in the language of federal gun laws, are unable to manage their own affairs due to “marked subnormal intelligence, or mental illness, incompetency, condition, or disease.”

How does this work? The story does not specify, but explains that it may be similar to the Department of Veterans Affairs, which has blocked firearm ownership for anyone “who has been declared incompetent to manage pension or disability payments and assigned a fiduciary.” Not that the person poses a threat to anyone else, but that they can’t manage a checkbook.

And how many elderly and disabled people would be deprived of the right to keep and bear arms?

About 4.2 million adults receive monthly benefits that are managed by “representative payees.” …

About 2.7 million people are now receiving disability payments from Social Security for mental health problems, a potentially higher risk category for gun ownership. An addition 1.5 million have their finances handled by others for a variety of reasons.

This is absolutely appalling. Depriving elderly and disabled persons of constitutional rights because they are unable to manage their own finances, without any process, is appalling. The Social Security Department has absolutely no expertise in deciding who should or should not own a gun.

As it works for Veterans, you file an appeal after your rights have been violated, and very few have been granted.

But as of April, just nine of 298 appeals have been granted, according to data provided by the VA. Thirteen others were pending, and 44 were withdrawn after the VA overturned its determination of financial incompetence.

Overman is one of the few who decided to appeal.

He is irritable and antisocial, he said, but not dangerous. “I’ve never been suicidal,” he said. “To me that solves nothing.”

More than a year and a half after Overman filed his challenge, the VA lifted its incompetence ruling, allowing his removal from the background check system before the VA ever had to determine whether he should be trusted with a gun.

There is no showing, whatsoever, that these people pose any threat to others.

Though such a ban would keep at least some people who pose a danger to themselves or others from owning guns, the strategy undoubtedly would also include numerous people who may just have a bad memory or difficulty balancing a checkbook, the critics argue.

“Someone can be incapable of managing their funds but not be dangerous, violent or unsafe,” said Dr. Marc Rosen, a Yale psychiatrist who has studied how veterans with mental health problems manage their money. “They are very different determinations.”

Even worse, while this program will do little-to-nothing to keep guns out of the hands of dangerous people, it will have the predictable, and perverse outcome of preventing people with mental health conditions from seeking treatment.

Rosen, the Yale psychiatrist, said some veterans may avoid seeking help for mental health problems out of fear that they would be required to give up their guns. …

Ari Ne’eman, a member of the National Council on Disability, said the independent federal agency would oppose any policy that used assignment of a representative payee as a basis to take any fundamental right from people with disabilities.  “The rep payee is an extraordinarily broad brush,” he said.

I’ve written at some length (here and here) about how depriving disabled persons of guns poses the serious risk of stigmatizing mental illness, and deterring people from seeking medical treatment.

The relationship between guns and mental health is much trickier than those who support gun control laws would have you think. First, most people who have mental health conditions are not dangerous. Second, singling out people with mental health conditions stigmatizes them, and could further harm their mental health. Third, requiring doctors to disclose to the state anyone who may have mental health conditions, with the consequence of depriving them of a civil right, may chill the doctor-patient relationship, and inhibit people who are in need of help from talking to a professional.

New York’s Safe Act requires doctors to report to the state anyone who is “likely to engage in conduct that would result in serious harm to self or others.” Then, as the NY Times reports, the state “rubber stamps” those names and puts them on a no-gun list, where they remain for 5 years. Any existing permit is immediately revoked, and all firearms are seized. Only after the permit is revoked–likely with no notice–can someone go to court and petition a judge to remove the name. Already, over 40,000 people have been added to this list. This program exacerbates all three problems I mentioned above.

The story does not provide specifics, but I think that this language is meant to track 22 U.S.C. 922(d)(h), which provides:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—(4) has been adjudicated as a mental defective or has been committed to any mental institution;

But can a determination by the Social Security Department that someone cannot manage a checkbook amount to being “adjudicated as a mental defective”?  The article suggests that it is not limited to a “court” but includes a “commission,” which means faceless bureaucrats at the Social Security Department.

But the category also includes anybody found by a “court, board, commission or other lawful authority” to be lacking “the mental capacity to contract or manage his own affairs” for a wide variety of reasons.

This action needs to be halted immediately. Without any showing that someone is dangerous, you cannot take away their constitutional rights. Not even Heller’s dicta about limitations for those who are “mentally ill” can include people who can’t manage their checkbooks. The Disability Rights community should be up in arms (no pun intended) about this outrageous stigmatization of those with mental illness.  This is shameful.

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Jul 19, 2015

Justice Alito Explains The Conference Process and the Decision to Dissent

I couldn’t recommend enough Bill Kristol’s 90-minute interview with Justice Alito. The interview touches on his path to the Supreme Court (that time when his daughter told him “Andy Card from the White House called”), how cases are decided, why Justice Alito has often dissented in First Amendment cases, why he dissented from the majority’s “post-modern” dissent in Obergefell, and why (alas) he picked the Phillies over the Yankees. The transcript of the interview is here.

One of the more revealing aspects of the discussion focused on how a case goes from arguments to conference to decision, and how far backwards Justice Alito will bend before he fractures and issues dissent.

First, Justice Alito said “in the typical case,” the Justices don’t talk before arguments.

In the typical case, I will not talk to any of my colleagues about the case before we hear the argument.

Importantly, he stresses this is “generally not done,” leaving open the possibility that it is done sometimes.

There’s no rule against doing it, but it’s just generally not done as matter of tradition or practice or efficiency.

But, the clerks do chat:

On the Supreme Court, the law clerks are very free to talk to each other so my law clerks usually have a sense of what the law clerks in the other chambers are thinking about the case but that’s not necessarily the same thing that the Justices are thinking about the case.

Second, Justice Alito describes the conference process:

The procedure at the conference is pretty formal. The Chief Justice will start and he’ll say, “Okay, the first case is Jones v. Smith, and this is what it’s about and this is what I think we should do. I think we should affirm; I think we should reverse.” … We have a rule that nobody can speak a second time until everybody has spoken once. So we make the complete circuit.

This is a point I got wrong in Unprecedented, based on some inaccurate information I received. I wrote that the Chief voted last at conference. This made for a dramatic scene with the Chief’s fluctuating vote in NFIB coming last. Alas, I was incorrect. If the book ever gets to a second printing, I’ll fix it.

Third, Justice Alito stressed the importance of taking good notes at conference:

. So we have to take – we all take notes. And it’s pretty important to take good notes, particularly if you’re going to be assigned the opinion because you need to try to remember exactly what at least four of your colleagues think about the case and if you draft an opinion and you circulate it, you want at least four justices to agree with you or else it’s not going to be the opinion of the Court. It’s important to either have a good memory of what was said or take good notes.

Fourth Justice Alito describes what happens if there is not a unified five-vote bloc:

But in any event we go around the table and once we’ve made the complete circuit, usually we’ll know how the case is going it be decided and the basic rationale of the case. Sometimes after we’ve gone around, well, the worst case in terms of efficiency is where there isn’t a majority for any judgment. There might be three votes to affirm, three votes to vacate, three votes to reverse. So then we have to try to see if there is some position, there’s some judgment that at least five could agree on. That’s pretty infrequent, that happens pretty infrequently.

But more frequently, once you’ve gone around it’s not clear that there is a rationale that five will agree on. There may be, let’s say, six-one to affirm but three-one to do it on one ground and three-one to do it on another ground. So again you have try and find sort of the least-common denominator, something that five would agree on. And then sometimes if particularly, if it’s a more controversial case, someone may want to answer something that was said by someone who spoke later so there may be a little bit of back-and-forth debate but it’s not an open-ended discussion, and it doesn’t go on for a very extended amount of time.


Fifth, Justice Alito discusses the phenomenon of equal assignments–which SCOTUS haruspices use to predict the authorship of opinions.

Not unless that’s the Friday at the end of the two-week session. So at the end of two weeks, usually we will have heard 12 cases, and Friday afternoon, an opinion assignment list will come around. So of the 12, we will almost always get at least one, and then three Justices will get two. So at the end of the year, basically, we’ve all received about the same number of opinions.

Sixth, Justice Alito speaks to the “join” process:

And what I hope is that I will very quickly receive eight memos saying, “This is perfect, you know, don’t change a word.” And it doesn’t always work out that way. …

What I will receive is a memo indicating whether that Justice is going to join the opinion, and I may get a memo that says, “I will join if you make this change and this change and this change.” Or “I join your opinion but I suggest that you make certain changes.” That would be leaving it to the discretion of the author. Or I may get a memo saying, “In accordance with my vote at conference, I’m going to dissent.”

Seventh, during conference, the Justices take an “inventory” of circulating cases:

On the Friday conference, one of the things we do is to do an inventory of the cases where the opinions are circulating. So if I would have circulated an opinion, we’ll go through the list and sometimes at that point someone will say, “I was in the majority at conference, but on the vote, but I’m going to wait and see what the dissent says.” So sometimes that will happen.

Eight, Justice Alito speaks to the phenomenon of one Justice flipping a majority opinion–the votes are not final until the opinion is announced.

And occasionally a decision will flip, you know, maybe once a term or so. Something that was five to four one way ends up being five to four the other way. Someone who was in the majority reconsiders after reading the dissent, thinking about the case, and so it’s not the most efficient thing, but it can happen.

I think this year Justice Thomas broke off Justice Scalia’s opinion in Walker v. Sons of Confederate Veterans and made Justice Breyer’s dissent into a majority opinion.


It’s possible a Justice could revoke a “join” just before a decision is to be delivered.

The votes are not final until we go out on the bench to announce the decision. So in theory, on a, let’s say, on a Monday morning when a certain case is ready to be announced someone in the majority could say, “Something came to me over the weekend and I realized my position is wrong and I’m switching my position,” and that’s going to switch the decision.

But that hasn’t happened while Justice Alito was in office.

It hasn’t happened that way, during my time but it could.

Ninth, Justice Alito explains he does not “know of any instance” where the Justices traded votes.

It’s different from what I imagine takes place and is considered to be proper in a legislative body where someone could vote for something that a person doesn’t really believe in in exchange for getting a vote on something else. I don’t know that that’s considered to be unethical behavior by a legislator. …

But on a court, you can’t. You know that’s improper, and I don’t know of any instance where it’s been done. So you can’t trade your vote.

Tenth, Justice Alito talked about how far he was willing to “bend” before breaking off an issuing a dissent:

And I don’t think any of us would actually sign onto something that we don’t believe in. But we are often required to sign on to something that is not exactly what we would prefer. It becomes a hard – one of the hardest things for an appellate judge. It was hard when I started, and it’s still hard sometimes to figure out how far you should bend before you say, “I can’t go any further.” So if someone circulates a majority opinion, and it’s not what you would have written, and you don’t like certain aspects of it, maybe you don’t like the language, how far can you go?

For the purpose of making a majority or for the purpose of just not writing another meaningless separate opinion, how far can you go before you say, “No, I can’t go any further?”

Eleventh, the former Circuit Judge realizes how difficult these fractured opinions are to follow, but insists that at some point, he cannot join an opinion.

It’s a hard line. As a former consumer of Supreme Court opinions when I was on the Court of Appeals what I wanted and what I think all the lower court judges, what all the parties want, the lawyers want, is a pretty clear rule so it’s nice to have a majority opinion. It’s difficult when you have to put together opinions and try to figure out what the holding is.

But on the other hand, sometimes I may get the draft of a majority opinion and I agree with the bottom-line, or it could be a dissent, I agree with the bottom-line and the basic argument, but there may be paragraphs that are based on past decisions from which I’ve dissented. And so it’s kind of hard to, you know, I accept the fact that this case was decided and it’s binding on me, but I still think I was right on that case and it’s hard to sign on to something that is enthusiastic about a position that I thought was incorrect. There are a lot of very hard lines to draw.

What fascinating insights into the opinion-writing process!






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Jul 17, 2015

New in NRO: After King v. Burwell, HHS Has “No Expertise in Crafting” Religious Accommodations for the Little Sisters

Last year after Hobby Lobby was decided, I raised the point that Congress never delegated to HHS the authority to make any decisions over which religious groups should, and should not receive accommodations. The ACA was entirely silent on this point–in large part because no one anticipated that the government would require Nuns to provide Plan B–and Congress only exempted houses of worship.

This observation got a injection of steroids after King v. Burwell, where the Court rejected the IRS’s qualifications to even issue a rule here because the agency “had no expertise in crafting health insurance policy.” In National Review, I offer an alternate grounds to invalidate the contraception mandate accommodation–HHS had no authority to issue it in the first place because they were not qualified!

Here is the introduction:

Chief Justice Roberts’s latest rewriting of Obamacare was not a complete debacle. Rather, as has become his pattern, the Chief tossed conservatives a consolation prize. The most significant, and underappreciated, aspect of King v. Burwell was that it rejected the received wisdom that the IRS had authority to redefine Obamacare. The agency, the Court found “had no expertise in crafting health insurance policy.” The IRS rule at issue in the case, which affected the price of health insurance for millions in three dozen states, was far beyond the skillset of the Treasury Department. Going forward, King puts another cornerstone of the Affordable Care Act in jeopardy. Because the Department of Health and Human Services has absolutely “no expertise in crafting” exemptions for religious groups from the contraception mandate, its regulations are entitled to no deference. The Supreme Court’s salvation of Obamacare may have also saved the Little Sisters of the Poor.

After King v. Burwell, it’s not clear that HHS has any expertise in crafting the sort of religious accommodations at issue in the unprecedented contraceptive mandate.

Whatever trivial expertise the Treasury Department may have had in “health insurance policy,” HHS had no specialization in minimizing burdens to religious liberty. Zip. Zero. Zilch. Nada. Simply stated, this was “not a case” for HHS from the outset. Indeed, before the ACA was enacted it was inconceivable that HHS would require any employers, let alone religious non-profits, to cover emergency contraceptives. Most of the attention in 2010 was focused on whether Obamacare would be used to publicly fund abortions. In researching my new book, I could not find anyone in the religious-liberties community who was concerned that the law could be used to force religious nonprofits to provide plans with emergency contraceptives. Even pro-life Democrat Representative Bart Stupak, who was a decisive leader in gathering votes to pass the ACA in the House, said that the contraception mandate “clearly violates” his understanding of how Obamacare was designed.

You may recall that Justice Kennedy raised just this point during arguments in Hobby Lobby:

Further, there is no evidence that Congress ever intended for HHS to make such delicate decisions concerning faith. During oral arguments in Burwell v. Hobby Lobby Stores, Justice Kennedy made just this point. He asked the solicitor general “what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” Justice Kennedy added, “Shouldn’t we indicate that it’s for the Congress, not the agency, to determine” who gets an exemption under the Religious Freedom Restoration Act? Justice Kennedy is exactly right. Congress did delegate to HHS the authority to determine which drugs should be covered by the contraception mandate. But it did not delegate to HHS the authority to delicately craft accommodations for some religious groups and not others.

From a separation of powers perspective, the entire accommodation is ultra vires, and cannot stand without an “express” delegation of authority from Congress-which there is none.  From the conclusion:

Without having to find that the accommodation violates the Religious Freedom Restoration Act, the Court could more narrowly find that the unqualified agency cannot decide who gets a religious accommodation. The legislature, and not HHS, has to go back to the drawing board to decide how best to provide access to emergency contraceptives while respecting religious liberty. This is a role for Congress, not for HHS trying to play God.

It may be worth an amicus.



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Jul 17, 2015

Default Judgment Spam

This is one of the odder spam emails I’ve gotten:

Notice to Appear,

You have to appear in the Court on the July 21.
Please, prepare all the documents relating to the case and bring them to Court on the specified date.
Note: The case will be heard by the judge in your absence if you do not come.

You can find the Court Notice is in the attachment.

Yours faithfully,
Ian Petty,
Clerk of Court.

I did not download the attachment, titled “Notice_to-Appear_383051.zip.”

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Jul 17, 2015

Is Opposition to DACA and DAPA “Racist”?

Yesterday, the Ninth Circuit held oral arguments in Arizona Dream Act Coalition v. Brewer. This case involves Arizona’s denial of driver’s license to DACA beneficiaries. During arguments, Judge Harry Pregerson implied that opposition to DACA “comes down to racism.”

Arizona has incurred no ill effects because of the new, legal Dreamer drivers, said Judge Harry Pregerson.

“Nothing horrible has happened on the highways of Arizona,” said Pregerson, who was appointed to the 9th Circuit in 1979 by President Carter.

Pregerson asked why Arizona continued to try to deny benefits to Dreamers. “Does it come down to racism? Does it come down to discrimination against these people? What else does it come down to?” he asked.

“Judge, I wish you wouldn’t say things like that,” Arizona Assistant Atty. Gen. Dominic Draye replied.

Pregerson added:

“I’m saying it because it’s the truth.”

Near the end of the hearing, Pregerson continued to push the attorneys toward discussing what Arizona’s decision would mean to thousands of people.

“They’re part of our culture, they’ve gone to our schools, they’ve made contributions,” Pregerson said. “The bottom line is, if there’s individual [scrutiny] of each eligible person who seeks the benefits of DACA, I guess that’s a terrible thing.”

You can watch the clip here, starting at around 2:23:38.

During oral arguments in Texas v. United states last week, fellow Carter-appointee Judge Carolyn King made a similar comment that Texas just doesn’t want DAPA beneficiaries to work:

U.S. Circuit Judge Carolyn King, the lone Democratic appointee to the panel, was skeptical. The states aren’t “contesting their ability to stay here. They can stay,” King said. “What you don’t want them to do is able to work.” “That’s the key,” she added.

An equally-stunned Texas SG Scott Keller calmly replied that this wasn’t the case at all.

These questions reflect an increasingly common theme in high-stakes separations of powers litigation. In King v. Burwell, one of the most important, if not the leading argument, was that the invalidation of the IRS rule would take away the healthcare of eight million people. The Solicitor General made this point in his brief, and an amicus brief was filed explaining how many people would die if the Court reversed the Fourth Circuit.

Likewise, the valence surrounding the challenge to DAPA has been that aliens would be unable to work, and could not come out of the shadows.Outside the Fifth Circuit last week, there were hundreds of demonstrators, and a marching band that you could hear on the audioI appeared on Al Jazeera America after Judge Hanen’s ruling, and was asked over and over again why poor, innocent immigrants should be denied this status.

The two comments from Judges Pregerson and King, however, take this popular perception to the next level. Rather than simply acknowledging the consequences of the cases if the states prevail, the Judges charge the states with the bare animus to harm people based on their race and alienage status. This is common fare for MSNBC and Salon, but is beyond the pale for judges.

It’s unavoidable that separation-of-powers challenges are always clouded by the consequences of the decision–if the Court invalidates or upholds X, then people will be harmed. That’s fine, and courts often do consider that in their judgment. But it is wildly inappropriate for Judges without any evidence to baldly state that the states did X for the sole purpose of harming people.

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Jul 15, 2015

Justice Kennedy on #SCOTUS “Draw Down” of “Capital of Trust.”

At the 9th Circuit Conference in San Diego, Justice Kennedy made some waves by comparing the aftermath of Obergefell to the aftermath of Texas v. Johnson (the flag burning case). If Justice Kennedy really sees these two cases on the same parallel, he needs a bigger reality check than I thought. But much more interesting were his remarks on “draw[ing] down” on the Court’s “capital of trust.”

Kennedy didn’t elaborate on the same-sex marriage ruling or on other decisions in the last term, but he said the justices must decide cases in a fair and neutral way.

“We have to reflect on what these issues mean, and when we have a controversial case – and a very difficult case like (same-sex marriage) – we draw down on a capital of trust, a deposit of trust,” Kennedy said. “We spend that capital of trust, and we have to rebuild that capital. We have to put new deposits, new substance into this reservoir of trust.”

So how do we read this? Is a decision invalidating marriage laws drawing on the trust deposit, requiring the court to “rebuild that capital later” with some future case. Or is the decision invalidating marriage laws what “rebuilds that capital” after it has been “draw[n]” down.  If so, then what decisions are “draw[ing]” on that trust.

In any event, I’ve proven myself absolutely incompetent at reading AMK’s tea leaves, so please disregard everything I wrote.

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Jul 15, 2015

Judge Holds Second Amendment “Applies Only to the Federal Government.”

In Harris v. Wenzel, 2015 WL 4092408, *4 , M.D.Pa. , (NO. 4:15-CV-00135), Judge Matthew W. Brann dismissed a pro se complaint that raised a host of civil rights violations arising from a traffic stop by a Pennsylvania State Trooper.  In his complaint, the plaintiff cited a violation of his Second Amendment rights when the police “[r]epeatedly [lied] to Plaintiff as to [the] validity of [his] PA Concealed Weapons Permit.” (ECF No 1-1, ¶ 10). The court correctly dismissed this claim, because the plaintiff “fail[ed] to state any alleged violation of his constitutional rights in this respect.” But in a footnote, Judge Brann states that the Second Amendment “Applies only to the Federal Government.”

Notably, Mr. Harris alleges that State actors violated his Second Amendment rights, a proposition that is invalid as a matter of law. In that respect, the Supreme Court has continually “reaffirmed that the Second Amendment applies only to the Federal Government.” District of Columbia v. Heller, 554 U.S. 570, 620 n. 23 (2008) (citing Presser v. Illinois, 116 U.S. 252, 265 (1886); Miller v. Texas, 153 U.S. 535, 538 (1894)). Therefore, it is impossible for Mr. Harris to state a claim for Second Amendment violations against the Defendants, and any amendment to the complaint would be futile. Consequently, this claim is dismissed with prejudice.

Now before you jump all over Judge Brann for stopping in the U.S. Reports at Heller, and not reading onto McDonald, think about what he is saying. The Second Amendment, standing by itself does not apply to the State Governments. Only by virtue of the Fourteenth Amendment (the Due Process Clause, or in my opinion the Privileges or Immunities Clause) is the right to keep and bear arms extended to the states. So yes, the court is technically correct. When pleading, the pro se plaintiff should have cited the 2nd and 14th Amendments, rather than the 2nd Amendment alone.

However, it was unnecessary for the court to make such a remark about a pro se pleading, which should have been read leniently. It was enough to find the claim was without merit (and it was).

H/T Dave Kopel and others

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Jul 15, 2015

DHS: Will Terminate Deferred Action Status For Anyone Who Does Not Return Improperly Distributed 3-Year Employment Authorization

Today in another supplemental filing, DOJ has submitted a 7/10 and 7/14 memorandum from DHS Secretary Jeh Johnson. In short, it offers extreme steps to recover the nearly 1,500 outstanding three-year employment authorizations that were sent after Judge Hanen’s instructions. The most extreme remedy is that anyone who has one, and doesn’t return it, will lose their deferred action status. Here are the highlights.



This should be enough to assuage Judge Hanen.

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Jul 15, 2015

Top Health-Care Lobby Hires Marilyn Tavenner (Former Obamacare Administrator) As New Chief

The revolving door in Washington keeps spinning. The irony of this revolution is particularly delicious. Recently, Karen Ignani, longtime Chief of America’s Health Insurance Plans (AHIP) stepped down. You may recall that Ignani was instrumental in rounding up support for Obamacare, and perhaps most significantly, persuaded then-candidate Obama to reverse his position and support an individual mandate. Why wouldn’t health insurance companies want a federal mandate to buy their products!  So who will replace her?

None other than Marilyn B. Tavenner. Remember her? She was the top official involved in the rollout of HealthCare.gov. Yes, the person who is largely responsible for the biggest colossal flop in the ACA’s history was hired as the top lobbyist for the health insurance industry! Unbelievable.

NYT reports, charitably:

Ms. Tavenner led federal efforts to carry out the Affordable Care Act, and she was stunned in October 2013 when HealthCare.gov crashed during its initial introduction, frustrating millions of consumers who were trying to buy insurance online.

In the ensuing months, she helped fix the website, after the White House deployed a management expert to supervise the operation, with the assistance of technology experts recruited from Silicon Valley.

“The rollout was far from ideal,” Ms. Tavenner said on Wednesday. “But I spent a month pulling a team together and creating a turnaround. The management challenges seemed insurmountable, but I am proud of what we accomplished.” Millions of people eventually gained insurance, she said.


Perhaps the most delicious irony, is that she was hired to lobby Congress.

She said that, because of federal conflict-of-interest rules, she would not lobby the agency or other parts of the Department of Health and Human Services in the remaining months of the Obama administration. But she said she was free to lobby Congress.


I can’t how many hearings before Congress where Tavenner looked like an absolute fool, totally unable to answer any questions about why HealthCare.gov was such a abysmal failure.

Glenn Reynold’s revolving door tax sounds like a great idea now.

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