Feb 28, 2015

President Weighs In On King v. Burwell and “Republican Party … suing us constantly” on Obamacare

During an interview on immigration, the President tried to draw a comparison between Judge Hanen’s ruling and the various challenges to Obamacare, which he described as (drumroll) “unprecedented.”

THE PRESIDENT:  Well, José, we’ve got one judge who made this decision.  We appeal it to a higher court.  We believe that the law is clearly on our side.  This is true in everything that we do.

Look at the Affordable Care Act.  We’ve signed up 11 million people to get coverage through the Affordable Care Act.  Over 2.5 million of them are Latino.  (Applause.)  Because of what we’ve done, we’ve seen the percentage of uninsured Latinos drop by almost 7 percent.  It’s unprecedented.  So we know it can work.

Now, that hasn’t stopped the Republican Party from suing us constantly, to try to find a judge who may think that what we’re doing is in appropriate, despite the fact that it passed through Congress.  We’ve got a Supreme Court that is still ruling on these cases.  But that hasn’t stopped us from moving forward.

Indeed, the administration hasn’t stopped, failing to prepare any backup plan if the Court invalidates the IRS rule in King v. Burwell. Oh, and while the ACA passed Congress, DAPA did not.

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Feb 28, 2015

President Explains 5th Circuit Appeal To Take “A Couple of Months” And Threatens to Sever Power of Purse With Veto

During a wide-ranging interview in Miami on Wednesday, the President commented on DAPA, DACA, and Judge Hanen’s order.

First, in response to a question about DAPA, the President alluded to forum shopping, by explaining “Republican governors . . . found a district court judge.”

Now, unfortunately, a number of Republican governors chose to sue.  They found a district court judge who has enjoined — meaning stopped — us going forward with this program.  But that’s just the first part of the process.  This is just one federal judge.  We have appealed it very aggressively.  We’re going to be as aggressive as we can because not only do we know that the law is on our side, but history is also on our side.’

But has this appeal been aggressive? Despite their empty threat they DOJ will appeal to the 5th Circuit if Judge Hanen didn’t rule by Wednesday, as of today, no papers have been filed in New Orleans. Is this aggressive?

In response to a question about how long the appeal will take, the President explained it will take “a couple of months.”

MR. DIAZ-BALART:  How long will it take?  Because a lot of people are asking.  They said, we were 24 hours away from registering for the expanded DACA and just months from DAPA.  This happens 12 hours before.  What’s going to happen now? How long is it going to take?  And, again, a lot of the questions are, was the President caught by surprise?  And why is it taking so long?  This is what we’re getting, Mr. President.

THE PRESIDENT:  What I’m saying is, is that of course we weren’t surprised.  I’ve got a bunch of lawyers, we saw the judge who was rendering the opinion.  The fact that we weren’t surprised doesn’t mean we can stop the judge from rendering an opinion.  It means that we then go forward in the appeal process. That’s how the legal system works.

And we have asked –- first and foremost, we have asked for a stay.  What a stay means, by the way, for the non-lawyers, is simply that whatever the judge thinks, it shouldn’t stop us from going ahead and implementing.  The first step is to go before that same judge and say, judge, what you said is wrong, rethink it.  He may not agree with that.

The next step is to go to a higher court, the Fifth Circuit. That will take a couple of months for us to file that and argue that before the Fifth Circuit.  We expect to win in the Fifth Circuit, and if we don’t, then we’ll take it up from there.

So at each stage, we are confident that we’ve got the better argument.  As I said before, what I’ve done is no different than what previous Presidents have done.  In the meantime, what I can do is make sure –-

He later repeated, again, that the process would take “months.”

So we’re going to be in a position I think of going through the legal process over the next several months.

Based on this comment, it doesn’t look like DOJ will file for an emergency stay with the 5th Circuit. A process that takes “a couple of months” will likely be an expedited appeal. But the panel opinion could take 6 months from start to finish. Then, en banc if it goes against the Administration. Then a year for certiorari. As I noted in National Review, the courts can effectively run out the clock on the Obama Administration.

One of the President’s most striking remarks concern the efforts of the House of Representatives to use the power of the purse to stop his executive action on immigration. While I am entirely ambivalent about the politicking around the funding of DHS and government shutdowns, the President explained that he would veto any effort by Congress to cabin his executive powers through the appropriations clause.

So in the short term, if Mr. McConnell, the leader of the Senate, and the Speaker of the House, John Boehner, want to have a vote on whether what I’m doing is legal or not, they can have that vote.  I will veto that vote, because I’m absolutely confident that what we’re doing is the right thing to do.  (Applause.)  And in the meantime, we’re going to continue to pursue all legal avenues to make sure that we have a country in which we are respecting not only the law, because we’re a nation of laws, but we’re also respecting the fact that we’re a nation of immigrants.

In Part II of my series, I spin a counterfactual where President Truman vetoed the “Steel Mill Restoration Act of 1952,” which defunded the President’s efforts to seize any steel mills. I use this as a scary example of how a President could use the veto power to fight back against Congress attempting to reclaim its legislative authority. Yet, this actually happened. In the past, the President threatened to veto a bill that would have grandfathered plans cancelled under Obamacare–then accomplished through executive action the exact goal. We are living in a surreal time, where the President describes such behavior as fitting a “nation of laws.”

The host asked the President in several different manners why he didn’t go further with DAPA. The President replied, as he did before DACA, and before DAPA, that he was already stretching his powers to their furthest extent. (Apparently, after each new program, the powers expanded).

The bottom line is, José, that I’m using all of the legal power vested in me in order to solve this problem.  And one of the things about living in a democracy is that we have separation of powers — we have Congress, we have the judicial branch — and right now, we’ve got some disagreements with some members of Congress and some members of the judiciary in terms of what should be done.

The President considers the current constitutional crisis a mere “disagreement” between Congress and the judiciary.

Once again, he says he expanded his powers “as far as we can” (He said that many times before).

What we’ve done is we’ve expanded my authorities under executive action and prosecutorial discretion as far as we can legally under the existing statute, the existing law.  And so now the question is, how can we get a law passed.

He adds that what makes him confident is “prosecutorial discretion.”

THE PRESIDENT:  Here’s the thing.  I was always very clear about this, even when I made the first announcement about the executive actions.  The reason I’m confident about our legal position in what we did with DACA, which was already in place since 2012, what we’re now proposing in terms of expanding DACA, and also for the parents of those who qualified for DACA — the reason I’m confident is that we could take those steps under my powers of prosecutorial discretion. 

If, in fact, we were completely just rewriting the immigration laws, then actually the other side would have a case, because we can’t violate statutes.  We can’t violate laws that are already in place.  What we can do is make choices to implement those laws.  That’s what we’ve done with DACA and that’s what we’ve proposed with the expansion of DACA and DAPA.

In order for us to do most of the work that Boris refers to in terms of expanding opportunities, for example, to say to any young person who has got an advanced degree in math and science and engineering, which we know we’re going to need, even as we try to get more and more young Americans to go into those fields –- in order for us to do that, we’re going to need a congressional law to be passed.  I don’t have all the authorities that are necessary in order to get some of those things done.

In a fascinating colloquy, the host explains why George H.W. Bush’s 1990 Family Fairness program differed from DAPA. Putting aside the fact that only 50,000 people applied (not the 1.5 million estimated), the key difference is that it served as a temporary bridge during the 9 months between when the Senate and House passed versions of the bill.

MR. DIAZ-BALART:  The numbers are unprecedented.

THE PRESIDENT:  Well, the numbers are unprecedented only relatively speaking.  I mean, if you look at what George H.W. Bush did, he, proportionally to what was then the immigrant population, was very aggressive in expanding.  The difference is, is that Democrats didn’t challenge what he did for largely political reasons.

MR. DIAZ-BALART:  And there was a bill already underway.

Focus very carefully on the President’s response. He quickly acknowledges that there was a bill pending– a fact his OLC neglected to discuss.

THE PRESIDENT:  Well, there was a bill underway…

The rest of the sentence seems to be a riff on his theme–when Congress doesn’t solve a problem, then I will.

… but in some ways, you could make an argument that since a bill had passed that didn’t solve that problem, Congress had been very direct in saying we don’t want to solve that problem.

His next sentence is confusing. Is “He” referring to George H.W. Bush? That’s what I thought till we got to the last part about DHS which didn’t exist in 1990. Is he speaking about his Secretary?

And he went ahead and did it anyway, because it’s in his authority to implement, using prosecutorial discretion, the limited resources of Department of Homeland Security.

It doesn’t really make sense. But I think there is a semblance of an idea there.

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Feb 27, 2015

Supreme Court on Jeopardy!

Today’s episode of Jeopardy had a category about the Supreme Court. I was only able to get a picture of the final three clues. One of the earlier ones involved Justice O’Connor asking what precedent Planned Parenthood v. Casey upheld. The question was “What is Roe v. Wade?” Of course, Casey did no such thing. I’m glad the fact checkers are on it. Alas, for the question of what day the Supreme Court’s term begins, one person said May 1, and another said October 1. Sigh. I would’ve cleaned up this category.




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Feb 27, 2015

Calabresi on the Inside Dirt Behind the Appointments of Justices O’Connor, Kennedy, and Souter, and Non-Appointments of Starr, Posner, and Wilkinson

In his response to Bruce Allen Murphy’s book about Justice Scalia, Steven Calabresi (with his co-author Justin Braga) offers some inside scoops (which I hadn’t seen) about the nominations of Justices O’Connor, Kennedy, and Souter, and the non-appointments of Starr, Posner, and Wilkinson. The details are, well, salacious.

As a member of the Reagan Administration for two years and as a close friend of leading Reagan Administration and George H. W. Bush Administration legal officials, I know a lot about how Justices O’Connor, Kennedy, and Souter got to be appointed to the U.S. Supreme Court.

First, Kenn Starr picked SOC. Calabresi calls Starr’s conservatism “squishy.”

Given the tiny number of women who attended law school in the 1950’s, it is very unlikely that any such conservative woman existed who had attended the nearly all male law schools of the 1950’s. Justice O’Connor was hand-picked by former Judge Ken Starr who served as Attorney General William French Smith’s Councilor and Chief of Staff in the early 1980’s. Starr was at the time a very moderate Republican with squishy views that were indistinguishable from those Justice O’Connor later displayed on the Supreme Court.

Calabresi blames Starr for this nomination.

In hand-picking Justice O’Connor for appointment to the U.S. Supreme Court, Ken Starr picked someone very much like himself: a mediocre, squishy, centrist with slight conservative leanings. Justice Scalia did not drive Justice O’Connor to the left. She was already there when President Reagan appointed her. The person to blame for the fiasco of the O’Connor appointment is not Justice Scalia but Ken Starr.

Calabresi also thinks Starr would have been a terrible nominee:

I think Starr would have joined O’Connor and Kennedy in refusing to overrule Roe v. Wade, and he would have been a constant thorn in William Rehnquist’s and Antonin Scalia’s side as he was when he was on the D.C. Circuit. He craved the approval of the Georgetown dinner party circle and of the elite law schools. He was also prone to make mistakes and furiously stubborn about not backing down from them in a way that has always reminded me of Justice Harry Blackmun who devoted his life to the defense of his mistake in Roe v. Wade. It was a serious error of judgment ever to have considered Ken Starr for appointment to the Supreme Court. His disastrous handling of his appointment as an independent council to investigate Bill Clinton proved to the nation all of his many flaws in judgment.

Second, we learn that Bill Bennett was key in stoning Doug Ginsburg’s nomination (come one, that pun was better than “going up in smoke.”)

After Judge Bork’s defeat, the Justice Department, led by conservative Attorney General Edwin Meese III, offered up a libertarian, former Harvard law professor Douglas Ginsburg as the second nominee. Ginsburg’s nomination went down in flames after it was discovered that he had attended a party at Harvard Law School in which students and faculty were openly smoking marijuana to which he did not object. Education Secretary Bill Bennett and his key aide William Kristol idiotically led a crusade to get Ginsburg to withdraw his nomination because he was soft on marijuana. That campaign succeeded paving the way for Justice Anthony M. Kennedy’s appointment. Ironically, Bennett and Kristol would have more likely agreed with Ginsburg than they have with Kennedy.

Third, the blame for Anthony Kennedy goes to “liberal Republican” Howard Baker and the “squishy” A.B. Culvahouse (who 20 years later helped vet Sarah Palin as VP):

The nomination of Anthony M. Kennedy after the Bork and Ginsburg fiascos fell to liberal Republican Howard Baker, who was the White House Chief of Staff trying to stave off Ronald Reagan’s threatened impeachment over Iran-Contra, and to his squishy White House Council, A. B. Culvahouse, because conservative Attorney General Edwin Meese had lost his control over the Supreme Court nomination process after the Bork and Ginsburg fiascos. General Meese’s candidate for the third nomination was J. Clifford Wallace, a mediocre candidate but a very devout Mormon who was an ardent conservative. The White House rejected Wallace out of hand preferring either Judge Bork’s conservative friend from his days at Yale, Ralph K. Winter, or Judge Anthony M. Kennedy. Winter’s candidacy was tubed because of the implacable opposition to him from Senator Joseph Biden, the Chairman of the Judiciary Committee, who quite wrongly thought Winter was just another Bork. Conservatives advising A.B. Culvahouse then rallied around Judge Kennedy who was seen as being more conservative than Judge Patrick Higginbotham who was another possible nominee. Kennedy was known to the White House to have had the strong support of Harvard Law Professor Laurence Tribe, a leading liberal, which made him confirmable in the heated politics following the Bork and Ginsburg fiascos.

Fourth, we learn that Calabresi interviewed David Souter for a possible 1st Circuit vacancy, and did not like him.

Justice David Souter was always a centrist in his jurisprudential leanings, as I learned first hand when I interviewed him for one hour on behalf of Attorney General Edwin Meese, when Souter was considered for appointment to the U.S. Court of Appeals for the First Circuit. I was asked to interview Souter under highly unusual circumstances. The most liberal judge on the First Circuit had told liberal Republican Senator Warren Rudman that he would be willing to take senior status thus creating a vacancy if he could be assured that New Hampshire Supreme Court Justice David Souter would be appointed to fill his seat. My job in interviewing Souter was not to assess him as a Supreme Court nominee but to figure out if he was significantly more conservative than the left wing judge who was offering to take senior status.

I came away from my interview with Souter with the view that he was a centrist justice in the mold of former Justices Potter Stewart, Byron White, Lewis Powell, and John Paul Stevens. I specifically came away from the interview with the belief that Souter would not vote to overrule Roe v. Wade but would follow it for stare decisis reasons. I recommended appointing Souter to the First Circuit since he was significantly more conservative than was the Warren Court liberal who was offering to resign.

Calabresi was “horrified” when he learned Souter was placed on the short list, and criticizes William Bradford Renyolds as “not especially bright”:

I was horrified why Attorney General Meese’s top advisor on Supreme Court appointments, William Bradford Reynolds, put Souter on a list of fifteen possible Reagan Supreme Court nominees, which seemed to me at the time to be utter folly. Reynolds did this for the same reason he evinced some warmth for Anthony M. Kennedy. He wrongly thought that Souter, unlike Kennedy, shared Reynold’s ardent opposition to affirmative action. My reading of Brad Reynolds on judicial appointments was the he was a single issue voter whose issue was opposition to affirmative action and who did not really care about the abortion issue or religious liberty. In any event, Reynolds proved to have been spectacularly wrong on Souter and affirmative action, which did not surprise me since I thought Reynolds was not especially bright nor was he a good reader of other people.

Calabresi recounts the familiar facts of how Souter was selected:

The next Supreme Court vacancy after the one filled by Justice Kennedy occurred during the administration of George H.W. Bush. Bush’s White House Chief of Staff, John Sununu; White Council, Boyden Gray; Bush’s Attorney General, Dick Thornburg; Bush’s Solicitor General, Ken Starr; and Bush’s future Attorney General William Barr all came together to get Bush to make the fateful mistake of nominating David Souter to the Supreme Court.

He faults Boyden Grays for wanting to appoint another Potter Stewart to the Court:

Prior to Bush’s 1988 presidential campaign, Boyden Grey, who was Bush’s chief legal advisor gave a speech to the Washington, D.C. lawyers’ chapter of the Federalist Society in which he said that if elected President Bush would strive to appoint Supreme Court justices like Potter Stewart. This speech greatly upset judicial conservatives and libertarians at the time since Potter Stewart had concurred in Roe v. Wade and was a centrist member of the Burger Court who was well to the left of Justice Scalia and Chief Justice Rehnquist. Once in office, as White House Council, Boyden Gray became enamored of moderate Republican Ken Starr as a Supreme Court nominee, who as we explained above had a bad voting record as a judge on the D.C. Circuit.

And revealed inside dirt about Ken Starr not voting to overturn Roe:

Gray decided Starr should be Bush’s first choice for the Supreme Court and ensconced him in the office of Solicitor General – a post that can lead to a Supreme Court appointment. Congressional Democrats conveyed their strong approval of Starr to the Bush Administration, and I heard at least one report, claiming that Starr had assured liberal Yale Law Professor Burke Marshall that he would never vote to overrule Roe v. Wade. (I had and still have a back channel to goings on at Yale Law School since my Uncle was the Dean there).

AG Thornburg told Gray that Starr was too liberal! So they turned to Souter.

Unbeknownst to Boyden Gray, Starr’s liberalism, stubbornness, and huge ego as Solicitor General was quietly infuriating Attorney General Thornburg and future Attorney General William Barr. When Justice Brennan unexpectedly retired creating a critically important vacancy on the Supreme Court, Boyden Grey met with Attorney General Thornburg to discuss filling the vacancy with Grey’s top choice, Ken Starr. To Grey’s astonishment, Attorney General Thornburg told Grey that Ken Starr was too liberal to be suitable for appointment to the Supreme Court, and that he Thornburg would resign in protest if Starr was nominated. The Bush Administration was already in hot water with Reaganite Republicans because Bush had fired 90% of the Reagan political appointees in the executive branch to replace them with moderate or liberal Republicans. A Thornburg resignation over an allegedly liberal Supreme Court pick was too costly to contemplate. A Ken Starr appointment to the Supreme Court was now out of the question.

And the process to replace Brennan was rushed:

Unfortunately, neither Boyden Grey nor Attorney General Thornburgh had given any thought to who else they might appoint to the Supreme Court other than Ken Starr, and they never conducted an exhaustive review of fifteen candidates as the Meese Justice Department had done. They were also determined to come up with a nominee very quickly. Bush’s very powerful White House Chief of Staff John Sununu and liberal Republican Senator Warren Rudman pushed hard for the appointment of Judge David Souter who was by then on the First Circuit. Souter derived added legitimacy from William Bradford Reynolds having placed him on Ronald Reagan’s list of fifteen possible Supreme Court nominees. Souter quickly emerged as Boyden Grey’s second choice, which is not altogether surprising because Gray had described Potter Stewart as being the ideal justice he was looking for and was hoping to appoint and Souter is only slightly to the left of Potter Stewart.

Calabresi recounts this story of Souter’s swearing-in:

I went to Souter’s swearing in at the White House and waited in line to shake his hand. When I got to do so I reintroduced myself to him, and he immediately recalled his interview with me at the Justice Department. The smile vanished from his face, and he dryly said he was happy I had survived into the Bush Administration to witness the moment of his swearing in. He was openly unfriendly.

And, for good measure, Calabresi has this to say about Posner:

Up until now I have purported to take Posner’s argument with Scalia on its own terms, but I do not feel I can in all honesty leave matters there. The relationship between Posner and Scalia is affectionate on Scalia’s side but filled with envy, pettiness, and anger on Posner’s side, at least in my opinion. Posner is the author of more than forty books, countless law review articles, and countless judicial opinions. I think he feels that he was far more successful as a law professor and a founder of law and economics than Scalia was when he taught at the University of Chicago School of Law. I think Posner blames Scalia for steeling his seat on the Supreme Court, and he quite personally and pettily resents and is envious about Scalia’s very visible presence on the High Court as one of its leading members. When Judge Robert H. Bork was nominated to the Supreme Court in 1987, Judge Posner joined Senator Ted Kennedy in trying to squash Bork’s nomination by writing an article in the New Republic entitled “What am I? A Potted Plant?” The point of the article was to argue for more judicial law-making than Scalia, Bork, or Ed Meese thought proper. Posner’s attack on Heller is thus just the latest and pettiest manifestation of his envy, spite, and anger at losing out for the best legal job in the country to Justice Scalia.

Calabresi explains that NO ONE wanted to appoint Posner to the Court:

The reality is that in all the extensive work I have done both in government and out of government for President Ronald Reagan, President George H.W. Bush, and President George W. Bush I have never, ever once heard ANYONE say that they thought we should consider Richard Posner for appointment to the U.S. Supreme Court. When the Meese Justice Department compiled detailed files on its fifteen most promising candidates for appointment to the Supreme Court, Richard Posner’s name was not on the list. When George H.W. Bush and George W. Bush kicked around names of possible Supreme Court nominees, Richard Posner’s name was again never on the list. When Posner’s name did come up, which was rarely, it was so that we could laugh about his immoral and politically fatal proposal to reform adoption law by legalizing the selling of babies. Posner was not respected by any of the last three Republican Administrations. He was the butt of a joke. If Scalia had not been appointed to the Supreme Court in 1986, the seat would have gone instead to Robert Bork, or Doug Ginsburg, or Ralph Winter, or Anthony Kennedy, or Patrick Higginbotham, or J. Clifford Wallace, or Larry Silberman, or Jim Buckley, or Stephen Williams, but certainly not to Richard Posner. It was not Justice Scalia who kept Richard Posner off the Supreme Court. Justice Scalia has had nothing but nice things to say about Posner over the last 28 years. The thing that kept Posner off every single Supreme Court list I have ever seen is his baby selling proposal, his weird personality, and his supreme penchant for judicial lawmaking in the guise of law and economics rather than originalism. Posner has no-one to blame but himself for the fact he was not appointed to the Supreme Court.

And Judge Wilkinson:

Judge J. Harvie Wilkinson is yet another inferior federal court judge who is a Supreme Court wannabe and who is envious of Justice Scalia and angry to have been passed over, at least in my opinion. … Unlike Judge Posner, who has never ever been considered for appointment to the Supreme Court, Judge Wilkinson was seriously considered by the Administration of George W. Bush for appointment to the High Court. He was interviewed by the President and was passed over in favor of brighter, younger, and more originalist judges like John Roberts and Sam Alito. Once again, Justice Scalia, on whom Judge Wilkinson vents his wrath, has never said a negative word to me about Judge Wilkinson. Judge Wilkinson has only himself to blameforthefacthewasnotappointedtotheSupremeCourt. HiscampaignagainstJustice Scalia is nothing more than sour grapes and is unfair to Scalia who is not responsible for the fact that Judge Wilkinson talked himself out of a job when he was interviewed by President George W. Bush.


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Feb 27, 2015

FiveThirtyEight Priors and Precedent Feature: FantasySCOTUS Predictions for EEOC v. Abercrombie and Fitch

The very-cool FiveThirtyEight will be using FantasySCOTUS predictions for pending cases. The first feature by Oliver Roeder looks at EEOC v. Abercrombie and Fitch.

Here I’ll turn to two sources: the {Marshall}+ algorithm — a computer program designed specifically to predict court cases — and the wisdom of the crowd at FantasySCOTUS — fantasy baseball’s even nerdier little brother. This is how likely those predictors view a Supreme Court reversal vote from each justice — a reversal would be a win for the EEOC and Elauf.

The predictions are all over the place, and most are made with little confidence — the likelihood of many justices voting to reverse the 10th Circuit decision hovers near the middle.


The computer algorithm foresees a 7-2 reversal, with Justices Antonin Scalia and Clarence Thomas dissenting. The crowd predicts the opposite — a 9-0 affirm as of Tuesday morning, but with a few justices more or less on the fence. And not everyone in the crowd agrees. “As it stands now, some of our best players are across the map on this case,” Josh Blackman, FantasySCOTUS’s creator, told me.

The crowd predictions may well improve. Some predictors will pore over the oral argument transcript looking for clues in the justices’ questions. But there’s only one way to find out what’ll happen for sure — wait. The court will likely issue its decision in this case in June.

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Feb 26, 2015

WSJ Op-Ed on King v. Burwell by Ilya Shapiro and Me: “A Litmus Test for ObamaCare and the Rule of Law”

The Wall Street Journal published an Op-Ed co-authored by Ilya Shapiro and me on our amicus brief in King v. Burwell. In honor of the 800th anniversary of Magna Carta, and the fact that the lead Plaintiff is named “King,” we struck a fitting rule of law theme. It is titled, “A Litmus Test for ObamaCare and the Rule of Law.” The Op-Ed discusses the many ways that the ACA has been modified, delayed, and suspended, at a whim.

Here is the opening:

This spring will mark the 800th anniversary of the signing of the Magna Carta, the landmark agreement by King John of England at Runnymede ceding certain rights to rebel barons. Liberty will have another chance to shine on Wednesday when the Supreme Court hears a case with momentous implications about another sort of executive power. In this instance, though, it is the rebels who have the royal name: King v. Burwell raises questions about how President Obama has enforced the ObamaCare law—or, more precisely, modified, delayed and suspended it.

This case isn’t about statutory interpretation, but the rule of law itself:

Executive lawmaking of this sort poses a severe threat to the separation-of-powers principles enumerated in the Constitution. The president has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.

King, which the Supreme Court is expected to decide in June, is thus about much more than interpreting statutory language or evaluating the “deference” that judges owe bureaucrats. It isn’t a technical debate over the finer points of administrative law; it is an existential one about the rule of law itself.

And the conclusion:

Chief Justice John Roberts was correct in 2012 when he wrote in the NFIB v. Sebelius decision that it isn’t the court’s role to “express any opinion on the wisdom of the Affordable Care Act.”

But he also correctly noted “the Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits.” The court’s duty is to be a bulwark against arbitrary rule.

This is especially true in disputes between the political branches; the judiciary thus provides the ultimate safeguard of the separation of powers. Or, as Justice Robert Jackson put it in the famousYoungstown case of 1952 that rebuked President Truman ’s unilateral seizure of steel mills: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

The president has shown deliberate indifference toward the plain text of the law. The Supreme Court must strike down the IRS rule and confirm the principle that, like King John at Runnymede, all political leaders are bound by the rule of law.


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Feb 26, 2015

ConLaw Class 13 – NFIB v. Sebelius (“Obamacare”)

The lecture notes are here. The live chat is here.

National Federation of Independent Business v. Sebelius (“Obamacare”)

  • Enumerated Powers and Federalism (597-598).
  • NFIB v. Sebelius (683-711).
  • NFIB Notes (711-715).

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Feb 25, 2015

Video: My Testimony Before The House Judiciary Committee on the Constitutionality of DAPA

Today I testified before the House Judiciary Committee on the Constitutionality of DAPA. You can download my testimony here or on Scribd. During the hearing, I was given five minutes for opening remarks. Afterwards, over the next 3 hours, members of both parties peppered the panel with questions. Most of the questions were focused on Professor Stephen Legomsky, the minority witness. It was a very rewarding, and enjoyable experience, and I’m very proud that I could discuss the Constitution, and cite Federalist No. 51 before the House of Representatives.  I’ll have some more thoughts on the merits in a subsequent post.

C-SPAN has video of the entire hearing here. I have clipped a few highlights.

Here is my five-minute opening statement. My parents, who travelled from New York for the hearing, got a special shout-out.

Second, I explain that many law professors who support DAPA argue that the DOJ did not go far enough, and they should have offered deferred action to the parents of the Dreamers.

Third, I reiterate the point made in Noel Canning that gridlock does not license the President to transcend the executive powers. I also discuss the Arizona v. United States decision, and stress that Justice Kennedy’s opinion turns on “individualized” discretion.

Fourth, I explain how the Heckler v. Cheney standard closely tracks the Take Care Clause Analysis, and that Judge Hanen showed his hand on how he would rule.

Fifth, my longest exchange of the day was with Rep. Poe (R-TX), who first gave very nice praise to the South Texas College of Law, and Dean Gerald Treece. Then, he asked me what would happen if future Presidents declined to enforce the law. I explained that this is already happening, as the President has delayed Obamacare’s mandates severla times. Poe replied, “When I ask you what time it was, you built me a watch.” I’ll take the compliment, sir.

Sixth, I explained that the *only* examples of DACA denials the DOJ could cite, outside of categorical denials, involved those who were engaged in gang activity, or fraud in previous applications. (You can see my mom sitting behind Prof. Legomsky).

Seventh, I discuss how Congress has acquiesced to much narrower versions of deferred action.

Eighth, my final colloquy with Rep. De Santis focuses on how the Congress can check the Presidency with the power of the purse.

Here are some photos:






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Feb 25, 2015

Testimony Before House Judiciary Committee

Today at 10:15 I will be testifying before the House Judiciary Committee on the constitutionality of DAPA. You can download my testimony here. The event will be on C-SPAN.org.

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Feb 24, 2015

Scalia: ALI Restatements of “Questionable Value, and Must be Used with Caution.”

After Justice Scalia’s dissent in Kansas v. Nebraska, the ALI may deem fit to convert his Ex-Offico Membership into just Ex.

I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement (Sec- ond): Its Misleading Quality and a Proposal for Its Amelio- ration, 13 Pepp. L. Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrich- ment is illustrative; as JUSTICE THOMAS notes, post, at 8 (opinion concurring in part and dissenting in part), it constitutes a “‘novel extension’” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, with- out further inquiry, that a Restatement provision describes rather than revises current law.

Here is the section from Justice Thomas’s dissent about the Restatement:

This Court, however, has never before relied on §39 nor adopted its proposed theory of disgorgement. And for good reason: It lacks support in the law. One reviewer of §39 has described it as a “novel extension” of restitution prin­ ciples that “will alter the doctrinal landscape of contract law.” Roberts, Restitutionary Disgorgement for Opportun­ istic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008). And few courts have ever relied on §39. The sheer novelty of this proposed remedy counsels against applying it here.

Your turn ALI.

Will Baude previously commented on the value of even more Restatements.


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Feb 24, 2015

ConLaw Class 12 – Scope of Federal Powers III

The lecture notes are here. The live chat is here.

Scope of Federal Powers III

  • Taxing Power (637-643).
  • The Spending “Power” (643-645).
  • United States v. Butler (645-648).
  • South Dakota v. Dole (648-656).
  • New York v. United States (657-670).
  • Printz v. United States (670-683)


Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)

The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B

By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.

Here is a photograph form 1906 of the Drexel Furniture Company in  Drexel, North Carolina that employed child laborers.



The company’s first plant burned in 1906.  The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity.  An addition was added in 1918.


Steward Machine Company v. Davis (1937)

The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.


I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.


Here is their modern-day image.

Steward Machine   Steward  Steward Machine  Steward machine Company  Steward Machine Co.  Steward machine Co.  Inc.  Earle  Earle Gear  Earle Gear Co.  Earle Gear Reducer  Earle Gear Reducers  Earle Speed Reducer  Earle Speed Reducers  Ear

United States v. Butler

This is President Roosevelt signing the Agricultural Adjustment Act into law.


And some cartoons.




South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.


Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.


Sheriff Richard Mack at the Utah Capitol.


Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.


More pictures of Sheriff Printz








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Feb 23, 2015

“ISIS, Immigration, and Obamacare” at Loyola Law School Federalist Society

On Wednesday, February 18, the Loyola Law School Federalist Society Chapter kindly hosted me for a discussion on executive power. Here is the audio:

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Feb 23, 2015

Frank Underwolf Blows Down #SCOTUS on Sesame Street House of Bricks

In a hilarious parody of House of Cards, Sesame Street brings you Frank Underwolf on House of Bricks. I won’t spoil the ending, but Frank blows down a pig-inhabited Congress (made of straw), a pig-inhabited Supreme Court (made of sticks), and sets his eye on the pig-inhabited White House (made of bricks). As he notes, there is way “too much pork.”

Here are the highlights:wind about-to-blow blow blow-scotus underwolf justices-pigs scotus-sesame-1 scotus-sesame-2

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Feb 23, 2015

71 Minutes Later, Texas Files Letter Opposing Motion To Stay

Say what you will about DOJ’s dithering, but within 71 minutes of DOJ filing its motion for a stay at 10:28 a.m., Texas filed a letter opposing it.

It’s short, so here it is in its entirety:

The Plaintiff States write to oppose Defendants’ request for expedited consideration of their motion filed today to stay the Court’s preliminary injunction pending appeal. See Dkt. No. 150 at 7. As this Court found, Defendants have no emergency need to take applications for benefits under the new program. Mem. Op. & Order (Dkt. No. 145) at 118-21. Defendants have implicitly recognized as much, by waiting a full week from the preliminary injunction to file this stay motion. Indeed, if Defendants had any compelling claim of a looming, irreversible harm from temporary injunctive relief, they would have featured it previously. They had ample time to do so: Plaintiffs requested a preliminary injunction on December 4, some six weeks before this Court’s January 15 motion hearing.

Defendants are not enjoined from setting enforcement priorities and marshaling their assets. Id. at 123. Rather, Defendants simply take issue with this Court’s conclusions, such as:

  • the Plaintiff States “have clearly proven a likelihood of success on the merits”;
  • “there will be no effective way of putting the toothpaste back in the tube” if Defendants’ program is not enjoined until a final resolution of its lawfulness;
  • “any injury to Defendants, even if DAPA is ultimately found lawful, will be insubstantial in comparison to Plaintiffs’ injuries” should the program take effect;
  • temporarily enjoining Defendants’ program will “merely preserve the status quo that has always existed”; and
  • “[i]f the circumstances underlying this case do not qualify for preliminary relief to preserve the status quo, this Court finds it hard to imagine what case would.”

Id. at 112, 116, 117, 120, 121. Defendants’ desire to relitigate these issues does not justify a deviation from the Court’s normal briefing schedule, which would allow Plaintiffs 20 days to respond. Court Civ. Proc. 6(C). At the very least, Plaintiffs should be allowed to respond within the same seven days that Defendants enjoyed to prepare their motion after the preliminary injunction issued. It is unreasonable to demand that Plaintiffs respond, and the Court rule on the motion, in under three days.

Texas calls DOJ’s bluff, and asks for 7 days, not less than 3 days to reply.

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Feb 23, 2015

Breaking: DOJ Files Notice of Appeal and Emergency Expedited Motion to Stay Injunction Pending Appeal

In Texas v. United States, DOJ has (finally) filed a notice of appeal and an expedited motion to stay the court’s injunction pending appeal. I will add more analysis as I review the pleadings.

From the emergency motion, here is how DOJ explains why it will suffer “irreparable harm” absent a stay:

A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources. Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal. Allowing the preliminary injunction to remain in place pending appeal would also harm the interests of the public and of third parties, who will be deprived of the significant law enforcement and humanitarian benefits of prompt implementation of the Guidance. When these harms are weighed against the financial injuries claimed by Plaintiffs (and found by the Court only as to Texas), the balance of hardships tips decidedly in favor of a stay; the harms claimed by Plaintiffs are not imminent and are fully within their power to avoid.

DOJ also asks for a partial stay to limit the injunction to the state of Texas (the only party found to have standing).

Finally, Defendants request in the alternative a partial stay of the injunction to the extent that it purports to apply nationwide. The injunction vastly exceeds the relief necessary to redress the limited alleged harms the Court credited in its Opinion. Specifically, the injunction purports to extend beyond implementation of the Guidance in Texas (the only State whose claims of harm the Court credited) to States the Court did not find to have established any injury, and even to States that have informed this Court that they desire and expect to benefit from implementation of the Deferred Action Guidance. Thus, although a full stay is warranted, at the very least, the injunction should be stayed so that it applies only to the implementation of the Guidance in Texas.

I anticipated this move, though I thought it would come sooner. I explain here why a nationwide injunction is proper.

DOJ also explains that a temporary injunction cannot be issued merely to maintain the status quo, but to prevent an injury.

The Court’s assertion that the preliminary injunction merely preserves the status quo, Op. at 119, is not a sound basis for concluding that Defendants will not be irreparably harmed absent a stay pending appeal. The focus of the irreparable harm inquiry “must be on prevention of injury by a proper order, not merely on preservation of the status quo.” Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). By enjoining Defendants’ ability to implement guidance that the Secretary has determined is necessary in the exercise of authority vested in him by Congress to administer the immigration laws, the Order jeopardizes the efficiencies to immigration enforcement (and thus the protection of the Homeland) that the Guidance would otherwise be expected to provide, “making it more difficult [for the Department] to efficiently and effectively carry out its mission.” Saldaña Decl. ¶ 19. Defendants would thus unquestionably suffer irreparable harm if a stay is denied, regardless of whether the injunction is characterized as preserving or altering the status quo.

DOJ tells the court that absent a ruling by Wednesday, it will seek an emergency stay in the 5th Circuit.

In light of the immediacy of the harm to Defendants and the public in the absence of a stay of the Court’s Order, which prevents Defendants from complying with the timeline set forth in the Guidance for U.S. Citizenship and Immigration Services (“USCIS”) to begin accepting requests for deferred action, Defendants respectfully request expedited consideration of their motion and a ruling as soon as possible. Absent a ruling by the close of business on Wednesday, February 25, Defendants may seek relief from the Court of Appeals in order to protect their interests.

I suspect Texas will file a reply today or early tomorrow.

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Feb 22, 2015

Updated Version of “The Constitutionality of DAPA Part II: Faithfully Executing the Law.”

I have uploaded to SSRN a revised version of “The Constitutionality of DAPA Part II: Faithfully Executing the Law” that will be published in the Texas Review of Law & Politics. It still has to go through a few more rounds of editing, but the body is solid.

Here, I want to focus on one aspect of Judge Hanen’s opinion that has been widely criticized–the fact that he quoted President Obama’s statements that he lacks the power to independently defer deportations. For purposes of the Take Care Clause, these sorts of statements–disclaiming power and then claiming it after congressional defeats–is relevant to show good faith compliance with the Constitution.

The President’s seventh, and most pointed comments, came on March 6, 2014, during an appearance on Univision.[1] The host asked him about “Guadalupe Stallone from California, [who] is undocumented.  However, her sons are citizens.”[2] She feared deportation, even though her children could remain in the country. The President explained that he could not help Ms. Stallone. “[W]hat I’ve said in the past remains true, which is until Congress passes a new law, then I am constrained in terms of what I am able to do.”[3] DACA, he admitted “already stretched my administrative capacity very far.”[4] The President could go no further because “at a certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’”[5] Citing Congressional power to distribute funding, the President reiterated, “’I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.”[6] Under DAPA, Ms. Stallone’s deportation would almost certainly be deferred because she is a mother of minor citizen children. This is true, even though as the President explained, Congress imposed laws, and funded the agencies, so the President had to enforce the law.

However, leading up to November 2014, the President’s position evolved from “impossible” to “absolutely.” During this process, the President announced that in “the face of that kind of dysfunction, what I can do is scour our authorities to try to make progress.”[7] What limits exist on how far he can scour? The President explained that to resist the “temptation to want to go ahead and get stuff done” when “there’s a lot of gridlock  . . . .I’ve tried to . . . make sure that the Office of Legal Counsel, which weighs in on what we can-and-cannot do, is fiercely independent, they make decisions, we work well within the lines of that.”[8]

While claims of a supine OLC are nothing new—as the President has disregarded OLC’s opinion regarding “hostilities” in Libya[9]—this statement is particularly implausible because it was the President who personally pushed his legal team to go further and exert even broader assertions of executive power. The New York Times reported that the administration urged the legal team to use its “legal authorities to the fullest extent. . . .”[10] When they presented the President with a preliminary policy, it was a “disappointment” because it “did not go far enough.”[11] Scouring the bottom of the presidential barrel for more power, Obama urged them to “try again.”[12] And they did just that. Politico reported that over the course of eight months, the White House reviewed more than “60 iterations” of the executive action.[13] The final policy, which ultimately received the President’s blessing, pushed presidential power beyond its “fullest extent,” as it embodies discretion in name only. Further, the policy is in tension with numerous statements the President personally made explaining why he could not act alone.

The Washington Post Fact Checker awarded this reversal an “upside-down Pinocchio for his flip-flop.”[14] While flip-flops are par for the course in politics, and usually warrant no mention in constitutional discourse, they are salient for the “Take Care” clause. When the President repeats over and over again that he lacks the power to stop deportations, it has special salience that the Executive acknowledges the limitations imposed by the Separation of Powers—something the President rarely does.[15] This is true for Presidents “learned and unlearned in the law.”[16]

After the President disclaims inherent executive power, it sends a signal to the Congress: when voting, the Legislature can rest assured that if they vote against the law, it will not be done anyway. But when the President suddenly “discovers” such authority after Congress rebuffs his efforts, the usual framework for the democratic process and the rule of law itself is turned upside down.

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Feb 22, 2015

Video: “What Happens if Data is Speech?” At University of Illinois Federalist Society Chapter

On Thursday, February 19, the Illinois Federalist Society Chapter hosted me for a wide-ranging discussion on Data, the First Amendment, Privacy Regulations, and the “Right to be Forgotten.” Joining me as my interlocutor was the ever-entertaining Jason Mazzone. Here is the video, audio, and some photos of the event.








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Feb 21, 2015

Updated Version of “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action”

I have posted to SSRN the near-final version of “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action.” It will be published in the Georgetown Law Journal Online.

It still has to go through another round of cite-checking, but the body of the article is close to complete. In this version, I added a lengthy discussion of President Bush’s 1990 “Family Fairness” plan. While OLC downplayed the relevance of this program, in its sur-reply, DOJ pivoted much more strongly to discussing it. Here is the new section, which explains why “Family Fairness” does not provide a precedent for DAPA:

            There is a sixth instance of deferred action that OLC puts surprisingly little weight on—the 1990 “Family Fairness” program instituted under President George H.W. Bush.[1] A brief history will explain why. In 1986, President Reagan signed into law the Immigration Reform and Control Act (IRCA).[2] This bipartisan act provided a path to citizenship for up to 3 million immigrants who had been continuously present in the United States since 1982. However, the law did not cover eligible immigrants’ spouses and children who did not themselves meet the residency requirement. This gap created so-called “split-eligibility” families. Generally, once a beneficiary of IRCA received LPR status, he or she could petition for a visa for a spouse or child.[3] Under the IRCA, however, during this potentially lengthy and cumbersome process to obtain a visa—roughly three-and-a-half years after status was approved[4]—these immediate family members without legal status would be subject to deportation.[5]

In 1987, the INS put on hold deportations of children under the age of 18 that were living with a parent covered by IRCA.[6] In effect, this temporary deferral of deportations was meant to give the parent the appropriate time to complete the process, and then allow the parent to petition for a visa for the child. At this point, it made little sense to deport children whose parents would, in due time, receive lawful status, and by extension petition for a visa for their children.[7] Attorney General Edwin Meese’s policy focused on circumstances where there were “compelling or humanitarian factors” that counseled against deportations.[8] On the other side of this deferral, a legal status awaited the child. In this sense, the deferral of deportations served as a bridge. The pot of gold was glistening, awaiting the alien on the other side of the rainbow.

In July of 1989, the Senate passed what would become the Immigration Act of 1990. This bill, among other provisions, provided relief for the children and spouses of IRCA beneficiaries. The Senate bill was not brought up for a vote in the House until October 1990,[9] though, as the New York Times reported at the time, “passage of the new legislation seemed almost certain.”[10] It ultimately passed by a vote of 231-192, with 45 Republicans voting yea and 65 Democrats voting nay.[11] Despite disagreements about the economics of the bill, the Times reported, “few dispute the humanitarian aim of uniting families.”[12]

In the interim, between the Senate vote in July of 1989, and the House vote in October of 1990, spouses and children of IRCA beneficiaries, who would soon be provided with a process to obtain lawful status, were still subject to deportation. In response, in February of 1990, INS Commissioner Gene McNary announced a new policy[13] to expand the deferral of deportations of roughly 100,000—not 1.5 million (as reported in the OLC opinion)[14]—spouses and children of IRCA beneficiaries. This was a temporary stopgap measure to protect those who would soon receive a lawful status after the legislation was enacted.

On November 29, 1990, President George H.W. Bush signed into law the Immigration Act of 1990. On signing the law, the President said it “accomplishes what this Administration sought from the outset of the immigration reform process: a complementary blending of our tradition of family reunification with increased immigration of skilled individuals to meet our economic needs.”[15] With the signing of the law, the Family Fairness policy become immediately moot—exactly what the President had in mind by temporarily putting on hold deportations until Congress could finish passing the bipartisan legislation.

Both Presidents Reagan and Bush used prosecutorial discretion to keep together families. For the 40th President, the deferrals were used to afford time so that parents could petition for a visa for their children. For the 41st President, the deferrals were a temporary stopgap measure in the several months between votes in the Senate and the House. In both cases, it made little sense to rip apart families, when in due course, the spouse and children could receive a visa, ancillary to statutory authorizations. As a 1990 article in the New York Times explained, a legal resident under the 1986 amnesty with lawful status, “would [soon] be able to file a petition for his wife to be granted legal status, a process expected to take about two years.”[16] Protection was extended based on someone who already benefited from Congress’s naturalization laws.

While the American Immigration Council calls President George H.W. Bush’s policy a “striking parallel to today’s immigration challenge,”[17] it teaches just the opposite lesson.  Presidents Reagan and Bush deferred deportations for family members who would shortly be able to receive a lawful status by virtue of the status of their spouse or child. In sharp contrast, DAPA defers deportations for parents of citizen children—who need to wait at least 21 years to petition for a visa—and parents of LPRs, who will never be able to petition for a parental visa.

Perhaps recognizing this difference, the OLC opinion draws a distinction between the five previously discussed programs, and the Family Fairness policy. OLC characterizes the “Family Fairness” policy not as a deferred action program, but a “voluntary departure program.”[18] Specifically under the policy, aliens were “potentially eligible for discretionary extended voluntary departure relief,” not deferred action. Voluntary departure allowed “allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country.”[19] In this case, the aliens were not required to actually depart during this interim period. Further, while OLC contended that Family Fairness and DAPA were on a similar scale, the opinion acknowledged that DAPA will “likely differ in size from these prior deferred action programs.”[20] OLC did not consider Family Fairness a precedent with respect to deferred action.

Perhaps unwittingly, the OLC opinion makes clear that the Family Fairness program fits within the “bridge” construct: “INS implemented a ‘Family Fairness’ program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986.”[21] Precisely! The temporary relief afforded to the beneficiaries of Family Fairness was connected to the 1986 IRCA.[22] The OLC opinion even makes clear that “Congress later implicitly approved” of the Family Fairness policy.[23] Such acquiescence is lacking for DAPA.

In short, Family Fairness served as a bridge—a very temporary one—until Congress could finish acting. President George H.W. Bush’s short-lived voluntary departure program was connected to the IRCA, and sandwiched between the Senate and House voting on a bipartisan bill.  As Professor Marguiles explains, “All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that relief.”[24]

DAPA, in contrast, is not meant as a temporary stopgap measure while Congress finishes a bill in the works. It imposes a not-too-veiled quasi-permanent status. Though it is not binding on the winner of the 2016 election, as a practical matter, those given deferred prosecution and work permits will be effectively untouchable. The President has admitted as much, explaining that future presidents may “theoretically” remove DAPA beneficiaries, but “it’s not likely.”[25] Call it lawful status by estoppel.

(Citations below the fold).

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Feb 20, 2015

Interview on Mike Gallagher Radio Show about Texas v. United States

Syndicated radio host Mike Gallagher interviewed me about Judge Hanen’s program. Here is a clip.

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Feb 20, 2015

The Choice of a Stay or Appeal in Texas v. United States

I’ve been racking my brain, trying to figure out why DOJ didn’t have an appeal strategy ready to go on day one (here and here). For the last month, it has been clear (to me at least), that Judge Hanen would rule against the government. So why the dithering? Here we are on Friday, and no notice has been filed.

One possible option is that now the Solicitor General is involved in the process. In DOJ, the SG’s signoff is needed for any appeal (with good reason). It’s possible that now the SG is exerting some influence. I previously mentioned that while the DOJ’s initial briefing was pretty poor, the sur-reply got a lot better. I suspect the SG got involved then, and is now trying to correct this mess.

So what is the SG thinking? The choice is between a stay or an expedited appeal. Both have plusses or minuses.

The advantage of a stay is speed. The issue will be resolved quickly by the Circuit Court, and can get to SCOTUS before the end of this term, or perhaps expedited arguments in September (like in Citizens United). The downside of the stay is the burden of proof–the government would need to show some sort of irreparable harm if the stay is not granted. I’m not sure what the irreparable injury is, because with the injunction, the ex ante status quo remains in place. This was one of the stronger aspect of Judge Hanen’s opinion. In his words, you can put the toothpaste back in the tube. It will be easier for the courts to rule against DOJ here, by arguing that there is no urgency, and the normal appeals process can be complied with. So there is a severe downside to seeking a stay.

The advantage of a stay is that the burden of proof is lower, and it is (in theory at least) easier to win. The downside is speed. It may take a few months at the the 5th Circuit, potentially followed by en banc at the 5th Circuit, followed by certiorari. You may not get a decision till June 2016. This runs out the clock on the Obama administration, a point I made in NRO.

Of course, DOJ can do both, seek a stay and file a expedited appeal. But a decision on the former could possibly resolve the latter, if the 5th Circuit panel reaches the merits. So the SG may feel he is on stronger ground with an expedited appeal, rather than dealing with the heightened burden of seeking a stay.

One other option, suggested by several colleagues more politically attuned than me, is that this delay is deliberate for partisan gain. The President would rather drag this out so he can blame it on the Republicans. This could set up future immigration reform in 2016. I don’t know. I can’t imagine DOJ would allow such a reckless strategy, but if the government delays much longer, it may lend this theory some credence.

Update: About 2 minutes after my post, DOJ announced they would seek a stay on Monday. So now, they will have the higher burden of proof, but it will be resolved this year.

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