Nov 23, 2014

Schoolhouse Rock 2014: “I’m an Executive Order and I pretty much just happen”

From SNL’s Cold Open, President Obama throws the bill down the steps, and replaces him with an “executive order.”

“Don’t you have to go through Congress?” “That’s adorable!”

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Nov 23, 2014

Could President Truman Have Been Impeached for Seizing The Steel Mills?

In Youngstown, the Court found that President Truman violated the separation of powers by seizing the steel mills, without Congressional authorization. In an alternate reality, could Congress have brought articles of impeachment? Sure, you can bring articles of impeachment. The most interesting question is whether the Senate would have been correct to remove him. Is a Supreme Court decision finding the President violated the Separation of Powers conclusive evidence that the President was guilty of “high Crimes and Misdemeanors.” Of course the Senate would be able to decide for itself whether the President acted lawfully, but a Supreme Court decision would be probative.

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Nov 23, 2014

Disclosing Donors of NOM and the Freedom of Association

In a post documenting how the National Organization of Marriage has had a significant drop in donations, Mark Joseph Stern posits one possible reason–the fear of being unmasked chills donations:

My second, related theory is NOM’s donors are increasingly terrified of being unmasked. For years, the group flew under the radar, and donors could give anonymously. But since the Prop 8 debacle, the indefatigable Fred Karger and his merry band of campaign finance lawyers have been fighting in court, successfully, to force NOM to disclose its donor lists. As the Brendan Eich controversy illustrates, having your name linked with an anti-gay cause can irreparably tarnish your public image. For anti-gay Americans without the backbone to weather harsh criticism, a NOM donation simply isn’t worth the risk.

Stern’s point brings to mind Justice Thomas’s dissent in Doe v. Reed. In Doe v. Reed, the Supreme Court found that a Washington law that permitted the public disclosure of petition signatures for ballot initiatives survived First Amendment scrutiny. In dissent, Justice Thomas alone wrote that disclosing the signatures “chills participation in the referendum process.”

Just as “[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participa- tory democracy,” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam), so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records Act (PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely burdens those rights and chills citizen participation in the referendum process. Given those burdens, I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process. I respectfully dissent.

Doe v. Reed emerged as supporters of the same-sex marriage ban reported allegations of harassment and intimidation in Washington. Similar reports were made for supporters of Prop 8 in California.

Stern’s point captures in a nutshell a theme I am developing in my work on collective liberty, where traditional liberal values clash. On the one hand, in cases stretching from NAACP v. Alabama, progressives once valued the ability of private groups to maintain the anonymity of their members. On the other hand, progressives see little value in protecting association if it is used to harm various social justice causes, such as same-sex marriage. These two values clash, and not in a reconcilable way. This is the essence of Breyer’s collective liberty. The First Amendment only works when it serves some greater goal.

I argue that the latter group is on the rise, and the latter group, is on the fall.Where the First Amendment and social justice clash, social justice prevails. Recent debates over compelled speech in the Elane Photography Case illustrate, disclosure of signatures in Houston, subpoenas of pastors, and campaign finance reform in the ACLU, illustrate this dynamic well. This is what Floyd Abrams referred to as the “disturbing recurring reality” of collective liberty.

See my remarks at the Loyola Constitutional Law Colloquium for more details.

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Nov 22, 2014

The Constitutional Limits of Prosecutorial Discretion

The Department of Justice Office of Legal Counsel’s memorandum justifying President Obama’s new executive action recognizes that prosecutorial discretion is not “unlimited.” As a result, the memo attempts to draw a line between lawful prosecutorial discretion, and unconstitutional executive lawmaking.

Citing the Supreme Court’s 1985 precedent of Heckler v. Chaney, the memo identifies four “principles governing the permissible scope of enforcement discretion.” First, as the Court noted in Chaney, enforcement decisions should reflect “factors which are peculiarly within [the enforcing agency’s] expertise.” This factor would almost always seem to be satisfied.

Second, the President “cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Specifically, the memo adds, “an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.” This argument reflects the backdrop of Congressional acquiescence, and the failure of the legislative branch to set any broad policies concerning immigration laws.

Third, the President cannot “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” The memo continues, “Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws.” The “Take Care” clause is violated by such an abdication.

The fourth principle, which is not from Chaney, but derived from its progeny is the most important: “non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis.” The memo proceeds to explain that this final factor is key: “case-by-case enforcement decisions” renders non-enforcement lawful.

The most important hurdle DOJ must vault to justify the President’s new executive action policy is to explain how the Administration’s blanket policy of non-enforcement for those who meet certain criteria fits within Heckler’s requirement for an individualized assessment.

The memo repeatedly cites Crowley Caribbean Transp., Inc. v. Peña (D.C. Cir. 1994), which warned that “a broad policyagainst enforcement poses special risks that [the government] ‘has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.’” In other words, if the government adopts a “broad” blanket policy of non-enforcement, there are “special risks” that it amounts to what Heckler called an “abdication of its statutory responsibilities,” and a possible violation of the Constitution.

The OLC memo parries this admonition, by explaining “That does not mean that all “general policies” respecting non-enforcement are categorically forbidden. There is a difference between a “general policy” (permissible) and “broad policy” (“risky” business). This is the essential inquiry — are President Obama’s policies with respect to DACA and IAEA “general,” or too “broad” so as to pose “special risks.”

OLC must explain how these “general policies” still entail “individualized assessments.” To do this, the memo turns to Justice Scalia’s 1993 opinion in Reno v. Flores. This case considered an INS policy whereby alien juveniles who were arrested without their parents would not be released into the custody of “responsible adults.” The petitioners contended the INS policy amounted to a “blanket’ presumption of the unsuitability of custodians other than parents, close relatives, and guardians.” In other words, there was no individualized assessment, and the INS was declining to enforce a statute would allow the release of the juveniles.

Agreeing that there may be risks to such a policy, Justice Scalia stressed that the Attorney’s General “exercise of discretion … requires ‘some level of individualized determination.’” But, Scalia countered, the government need not “forswear use of reasonable presumptions and generic rules.” In other words, applying certain types of presumptions or rules, while they may seem to be a “blanket policy,” are in fact forms of individualized assessment. Such approaches are not too “broad” to pose constitutional problems.

Justice Scalia continued, and noted that by asking a series of questions — such as whether the alien is “under 18 years of age” or if he has an “adult relative or legal guardian” — the INS “makes those determinations that are specific to the individual and necessary to accurate application of the regulation.” With these questions, Scalia concludes, “the particularization and individuation need go no further than this.”

Dissenting from this position was Justice Stevens, joined by Justice Blackmun. Justice Stevens would reject the notion that “mere presumptions” satisfy the requisite individualized determination requirement: “a blanket rule that simplypresumes that detention is more appropriate than release to responsible adults is not narrowly focused.” Stevens would require a meaningful assessment, on a case-by-case of whether an alien juvenile could be released into the custody of a “responsible adult.”

Based on Reno, the OLC memo explains that “some ‘general policies’ may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases.” This is how OLC justifies the President’s new immigration policy, as well as DACA. The memo explains what approaches are permissible: “General policies” that “provide a framework” that allows the government to make “individualized, discretionary assessments” about whether or not to enforce the deportation laws. The rule, if it can be so simply stated, is that applying “reasonable presumptions and generic rules,” pursuant to a “general policy” is permissible, so long as it involves “some level of individualized determination” with “case-by-case discretion.”

At every step of the analysis, the memo returns to this framework. With respect to prioritization of criminals (felons over families, as the talking point goes), OLC explains that “although the proposed policy is not a ‘single-shot non-enforcement decision,’ neither does it amount to an abdicationof DHS’s statutory responsibilities, or constitute a legislative rule overriding the commands of the substantive statute.” Why is this seemingly blanket policy not an abdication? Because it “provides a general framework for exercising enforcement discretion in individual cases, rather than establishing anabsolute, inflexible policy of not enforcing the immigration laws in certain categories of cases.”

In its discussion of “expansion of deferred action to new classes of aliens,” OLC stresses that “Immigration officials cannotabdicate their statutory responsibilities under the guise ofexercising enforcement discretion.” To avoid this abdication, any program should “leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement.”

Finally to rebut claims that the “breadth” of the program raises “particular concerns,” OLC falls back on the same line of reasoning. “The guarantee of individualized, case-by-case review helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief.” The last, best hope of a blanket non-enforcement policy is the appearance of an “individualized assessment.”

I emphasize “appearance,” because it is not clear the policy President Obama announced recently employs an actual “individualized assessment.” While the OLC’s theory seems consistent with precedent — and OLC went out of its way to do so — it remains to be seen whether the policy operates in accordance with this theory.

To use a historical example, consider President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA). As OLC noted in their memo, they “orally advised” the Administration that “class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.” Specifically, the memo warned that “granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria” would be problematic. Secretary Janet Napolitano’s June 2012 memo, announcing DACA, provided that “USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis.” This is very similar language to Secretary Johnson’s memo.

Despite paying lip service to discretion, according to a Brookings report, only 1% of applicants were denied deferrals. I could not find any explanation for why, under the capacious standards set by DHS, the denial rate was even this high. A 1% denial rate seems awfully close to “automatic” relief.

Justice Scalia’s opinion in Reno stressed that “exercise of discretion … requires ‘some level of individualized determination.’” The relevant question here, is “individualized determination” of what. In Reno, the discretion was based on an “individualized determination” of a statute passed by Congress — whether the alien juveniles could be released to certain adults. Here, the “individualized determination” is based on policies the Obama Administration itself created out of whole cloth. (As an aside about DACA, because the Dreamers did not have an independent path to citizenship, unlike the parents of U.S. Citizens under IAEA, it is unclear how the OLC’s memo justifies deferring their deportation. I’ll address this in a future post). Whatever deference may be owed to the statute passed by Congress, and implemented by INS in Reno, does not exist for President Obama’s unilateral executive action.

OLC lists the factors to consider for IAEA , as explained in a Draft Memo by U.S. Citizenship and Immigration Services, cited in the OLC Memo (available here):

Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in theexercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014)

These factors are equally capacious as those under DACA, and are likely to yield a similar denial rate. Secretary Jeh Johnson provides absolutely no guidance of what this “exercise of discretion” should be, and what the grounds are for rejecting an application. This must be deliberate, as OLC felt compelled to address this absence. The memo explains, “The proposed policydoes not specify what would count as such a factor; it thus leaves the relevant USCIS official with substantial discretion to determine whether a grant of deferred action is warranted.” Yet, OLC still expects that officials “evaluating the alien’s deferred action application must still make a judgment, in the exercise of her discretion, about whether that alien presents any other factor that would make a grant of deferred action inappropriate.” While this absence of guidance should create a cause for concern, OLC is satisfied. “This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens.” This is likely discretion in name only.

OLC explains that “Some ‘general policies’ may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases.” It is unclear how this policy does anything more than pay lip service to “individualized, discretionary assessments about whether to initiate enforcement actions in particular cases.” By its own terms, the President’s policy seems to flunk OLC’s approach. The President has in mind a group he wants to exempt from the law, and created a policy to do just that. Further, from a practical perspective, if DACA is any guide, this “exercise of discretion” is not particularly meaningful.

With respect to the future applications of up to 4 million immigrants, only 24 Field Offices — whose workers we are told are extremely overworked — are expected to manage all of those applications. It’s not hard to imagine that this individualized assessment quickly turns into a rubber stamp. It cannot be the rule of law that the President can create criteria that automatically apply to millions, then instruct his agents to check off a few boxes that will always be checked, and call it an individualized assessment. The policy is designed to exempt everyone who correctly signs up. This is not an instance of executive discretion, but of clerical approval. Such a ministerial task seems inconsistent with the type of analysis required byHeckler.

Finally, I think it is essential to separate the two types of executive action the President is taking: prioritization and deferred action. They are not the same.

The first — prioritization of deporting those who are dangerous — falls closer to traditional roles of prosecutorial discretion. But, in the usual case, once a person is not prioritized for enforcement, there are no further costs to the government (I will put aside for the moment the fact that a person who is not deported may inflict other social costs). Resources are saved, and they can be spent better elsewhere.

But here we have a one-two punch. First, the President prioritizes. Second, deferred action is offered for a large portion of those who fall outside of the priority category. Instead of simply rearranging priorities for the purpose of conserving resources with regard to one class, the policy creates a framework where brand new costs are incurred due to setting the priorities. And it is this second group — a materially larger group — that creates constitutional difficulties. The weakness of the latter aspect makes the justification for the former less plausible. In total, the President’s total actions are legally lesser than the sum of its parts.

Beyond immigration, the same prosecutorial discretion was used to justify non-enforcement of Obamacare. This includes the waiver for the Obamacare individual mandate (the so-called administrative fix), where anyone who “believes” that Obamacare was “unaffordable” would be exempt from the mandate penalty. It seems this relief was virtually automatic for anyone who asked, without any individualized assessment. Same for the employer mandate, where the Administration exempted all businesses with between 50 and 99 employees till 2016. Again, automatic. It’s unclear that any businesses that met these criteria were denied.

It cannot be the rule of law that the President can create arbitrary criteria of where the law will not apply, and then exempt anyone who meets those criteria. To quote the court inPena, this is the very type of “a broad policy against enforcement [that] poses special risks [because] it ‘has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.’”

The administrative fix is subject to a suit by the State of West Virginia, which is currently pending before D.D.C. on a motion for summary judgment. The employer mandate delay is the subject of the House of Representative’s lawsuit. Both plaintiffs should amply cite the OLC memo to explain why the President lacks this discretion, with an important caveat — whatever vast discretion exists in the immigration context is not nearly as strong in health care law,which Congress has certainly not acquiesced to.

As I explain in Unprecedented: The Constitutional Challenge to Obamacare, the Solicitor General adopted the strategy of notoffering a clear limiting principle about the scope of the commerce clause. The fear was that by offering a limiting principle, it would bind the government in ways they would not want to be bound in the future. The SG determined that if he was going to lose, he would rather let the Court craft a limiting principle for him. With this OLC memo, we see the wisdom of the SG’s decision. By putting forth a standard that the administration may not have complied with, it has opened itself up to myriad challenges, some under way, and others to come. My sequel, tentatively titled Unraveled: Obamacare, Religious Liberty, and Executive Power, continues to get more interesting.

–Cross-Posted at The Volokh Conspiracy

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Nov 22, 2014

My Op-Ed in L.A. Times – Congress has itself to blame for ceding so much power to the President

Last week at the Federalist Society convention, a panel was held on the President’s duty to take care that the laws are faithfully executed with John Baker, Ron Cass, John Eastman, Chris Schroeder, Neal Devins, and moderated by Judge Griffith (CADC). Most of the discussion focused on the President’s ability to defer prosecutions of deportations. Sam Stein of the Huffington Post (who was sitting next to me by the only table in the Mayflower with a power outlet) reported “Legal Panel At Federalist Society Begrudgingly Accepts Obama’s Immigration Powers.”

This headline irked many members of the Federalist Society, but Sam accurately reported the event.

The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.

My good friend John Baker made a very important point, which inspired an Op-Ed I wrote in today’s Los Angeles Times.

“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered,” Baker said. “The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”

As usual, John is exactly right on the structure of our Constitution. Throughout the 20th Century, Congress has shirked its duty to legislate and appropriate to maintain the separation of powers.

In my Op-Ed, which the LA Times titled “Obama’s overreach? Look in the mirror, Congress,” I write that Congress has itself to blame for this power grab–but not in the way you think. In short, I argue that OLC has found a way to justify the President’s expansion of prosecutorial discretion under existing precedents. The scary thing about this wide-ranging suspension of the law is that his view isn’t obviously wrong.

While Obama’s action represents a brazen expansion in the size and scope of executive authority, Congress shares in the blame for acquiescing to decades of presidential power grabs. In order to maintain the separation of powers, Congress must reassert its constitutional mandate to legislate and appropriate, rather than lazily passing a blank check to the White House.

And I’m not talking about the President’s warning to “pass a bill.” No. I mean Congress should start reasserting itself, through the power to legislate and the power to appropriate, to ensure the Executive cannot simply evade the law he doesn’t like through non-enforcement.

Here is the key analysis on immigration, where I peer through the smokescreen of prosecutorial discretion, and call it what it really is:

This brings us to President Obama’s immigration actions. Over the last 60 years, Congress has given the president virtually unlimited authority over immigration enforcement, and then it has stood back and acquiesced as one chief executive after another continued exempting groups from the naturalization laws, with no repercussions. When Congress refused to pass the Dream Act in 2011, which would have provided a path to citizenship for 1 million young people brought here unlawfully as minors, the president indefinitely deferred their deportation. Congress did nothing in response. Now, after Congress refused to pass further immigration reform, the president is deferring the deportation of 4 million undocumented immigrants who are the parents of American citizens.

The president argues, not unreasonably, that with limited resources appropriated by Congress, he can only deport 4% of those subject to deportation. But that argument only goes so far. After he tried and failed to pass new laws, it is fairly transparent what is really going on with his new “priorities.” Under the guise of allocating limited resources, he has found a shortcut around Congress.

And, as we saw in Noel Canning, and Youngstown before, the President can aggrandize powers when the Legislature does not check it.

When Congress fails to check the other branches, the executive, acting alone, aggrandizes the legislative power from generation to generation. Justice Antonin Scalia reminded us recently that “in any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch.” Or, as Justice Felix Frankfurter eloquently warned in the landmark 1952 separation-of-powers case, Youngstown Sheet & Tube Co. vs. Sawyer, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

What’s my prescription for this constitutional ailment? Congress should do its job, and check the President, rather than being lazy.

When the new session of Congress begins, and members express outrage that the president’s discretion has allowed him to thwart the rule of law, they need to look into their own chambers and realize that the fault lies in themselves. As James Madison recognized in Federalist No. 51, “Ambition must be made to counteract ambition.” Congress must stop shirking its responsibility, and reclaim the legislative mantle. Through the power of the purse, and the drafting of precise laws, it can steer the separation of powers back to their proper constitutional moorings.

I hope my invocation of James Madison does not set Southern California into a tizzy, and trigger aftershocks of liberty along the San Andreas fault.

The article I wrote over the summer, Gridlock and Executive Power, needs to be significantly refreshed. I think I will turn it into (at least) two law review articles, with the goal of transforming it into a book project on the historical relationship between Congress and Presidents with respect to executive evasions.

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Nov 22, 2014

Initial Thoughts of Complaint in House of Representatives v. Burwell, et al

At long last, after two law firms dropped the case, the House found a lawyer to file its complaint–Jonathan Turley. The case styled “U.S. House of Representatives v. Burwell et al” has now been filed in D.D.C. before Judge Collyer. You can view the complaint here.

In this post I will try to provide an initial analysis of the complaint.

Here is a summary of the charges of unlawful acts:

A. Defendants Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services, Jacob J. Lew, Secretary of the United States Department of the Treasury, and the respective Executive Branch departments they head, have violated, and are continuing to violate, the Constitution by directing, paying, and continuing to pay, public funds to certain insurance companies to implement a program authorized by the ACA, but for which no funds have been appropriated. Such unconstitutional payments are estimated to exceed $3 billion in Fiscal Year 2014, and total approximately $175 billion over the ten succeeding Fiscal Years. Defendants’ expenditure of taxpayer funds, absent a congressional appropriation, plainly is unconstitutional as it violates Article I of the Constitution; it also violates statutory law, in particular, 31 U.S.C. § 1324, the ACA, and the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq.

B. Defendants Lew and the United States Department of the Treasury also have violated the Constitution by issuing a regulation that effectively amends ACA provisions that impose mandates on certain employers and establish a deadline by which such employers must comply with those mandates. These unconstitutional actions are estimated to cost federal taxpayers at least $12 billion.

With respect to standing, the complaint repeats over and over that the President’s actions “usurp the House’s Article I legislative powers.”

One question I have had from the outset is mootness. The employer mandate–assuming there are no more delays–goes into effect in 2016. But by adding the payments to insurance companies, the case remains live beyond 2016.

Finally, most of the relief sought is declaratory, except for injunctive relief ordering the Secretary of the Treasurer not to make any further payments in the absence of an appropriation.

Enter injunctive relief as follows:
(i) With respect to Counts I, II, III, IV, and V, enjoin defendants Lew and the Treasury Department from making any further Section 1402 Offset Program payments to Insurers unless and until a law appropriating funds for such payments is enacted in accordance with Article I of the Constitution.

So the complaint isn’t ordering the Executive Branch to do something. It is telling the Secretary to stop spending money. All other relief is declaratory. What’s the purpose of a declaration that the President is acting unconstitutionally? Use your imagination.

Unsurprisingly, the White House called the suit “unfortunate”:

The White House says it is “unfortunate” that House Republicans would devote time and energy to filing a lawsuit challenging President Obama’s delay of a provision in his signature healthcare law, as they did Friday.

“At a time where I think the American people want Washington focused on jobs and the economy, the House Republicans choose to sue us, sue the president for doing his job,” spokesman Eric Schultz told reporters traveling aboard Air Force One.

Schultz added that Republicans were using taxpayer resources “for a lawsuit that their own congressional research service could not identify any merit for.”

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Nov 21, 2014

Oklahoma FIles for Certiorari Before Judgment in Obamacare Subsidies Case

Since the Supreme Court granted certiorari in King v. Burwell, I’ve been privately wondering whether Oklahoma, through Attorney General Scott Pruitt, would attempt to file a petition for certiorari before judgment, and join the case. Their case was on appeal to the 10th Circuit. Today, Oklahoma filed that motion. In short, the petition argues that adding Oklahoma would allow the Court to hear the perspective of the state, which has a special solicitude under Massachusetts v. EPA. Further, adding Oklahoma will firm up standing.

Oklahoma proposed an expedited briefing schedule. The Solicitor General will likely oppose it, though its BIO should be filed soon to give the Court enough time to consider the petition, and order a briefing schedule if necessary.

I should stress that it is very, very rare for petitions for certiorari before judgment to be granted. Virginia through former A.G. Ken Cuccinelli attempted this after their E.D.Va. victory, and it was soundly denied. This case may present a better vehicle–especially if the Justices have concerns about standing (this topic was aflutter on the ConLaw list-serve in the past week). If there were 4 to grant in King, I’m not sure why the same 4 wouldn’t grant this one.

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Nov 21, 2014

Schedule for Same-Sex Marriage Argument in Fifth Circuit

The 5th Circuit has announced that the consolidated same-sex marriage appeals from Texas and Louisiana are slated for oral arguments in New Orleans on Friday, January 9. There are no other cases scheduled for that day. (The Louisiana plaintiffs have filed a petition for writ of certiorari before judgment). It is the custom of the 5th to announce the composition of the panel the Monday of the week before argument, so we should know who will be hearing the case on Monday, December 29.

Based on my earlier calculations, the soonest the Court could grant certiorari from the 6th Circuit appeal would be on the January 16, or January 23 conference. In either case, the Court will have heard the arguments in the 5th, and can react accordingly, or not at all. Otherwise, the 5th Circuit will hear the case before cert can be granted, so it can’t be delayed any longer. But, there may not be a decision, as a cert grant would moot it.

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Nov 21, 2014

Elena Kagan on Paul Krugman: “Ridiculous”

I didn’t think I could like her any more, but Justice Kagan called one of Paul Krugman’s column–asserting that the Court is “corrupt”–“ridiculous language.”

Furthermore, though the public may believe the Court is polarized, 60 percent of last term’s decisions were unanimous, she noted.

Statements such as that of economics professor Paul Krugman’s argument in a New York Times column that the Court is corrupt, which was brought up by Eisgruber, are inaccurate, Kagan said.

“That is just ridiculous language,” she said.

Justices may agree or disagree, she said, yet they all fulfill their jobs in good faith.

Amen.

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Nov 20, 2014

On Denial of Deferrals for DACA Parents

The OLC Memo (which I discussed here and here) does not permit the deferral of deportations for the parents of DACA beneficiaries, even though HHS seems to have thought this was permissible. This is an important limitations, because those who are parents of U.S. Citizens have a path to citizenship. The DACA parents do not. As I noted yesterday–they do not have a pathway to citizenship. Therefore, this would not be a temporary gap.

But the proposed program for parents of DACA recipients is unlike the pro- posed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. …

Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition—as it has for VAWA self-petitioners and individuals eligible for T or U visas—or enabled their undocumented children to petition for visas on their behalf. Nor would granting deferred action to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implemen- tation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA.

In effect, President Obama would have attempted to bootstrap a future grant of amnesty based on his own 2012 deferral, which had the effect of protecting minors and not their families. I’m glad the OLC drew the line here.

Wallter Dellinger (who I suspect had an advance copy of the OLC memo) writes at Slate at the analysis is “thin.”

The lawyers here were cautious. They gave approval for deferred actions for parents of citizens and lawful permanent residents, finding that Congress had demonstrated support for permitting people who are lawfully in America to be united with their parents, spouses, and children. They did not, however, believe that they could approve a similar program for parents of those who are in the United States under the deferred action for childhood arrivals, or DACA, program. Because the Dreamers remain in the country based on discretion, not on the basis of a legal entitlement, OLC reasoned that without a family member with lawful status in the United States, there was not the same grounding in congressional policy to justify classwide relief.

Ironically, if anything could be criticized in the administration’s legal opinion, it would be that the reasoning for not permitting deferred action for Dreamer parents is somewhat thin. At the end of the day, the legal concern seems to be that approving deferral in the case of Dreamer parents would suggest the absence of a limiting principle: If relatives of children who are not themselves lawful residents are permitted temporarily to remain, what about relatives of relatives of relatives? The program approved by Justice is more soundly grounded in a family connection with a child who is a citizen or a lawful permanent resident.

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Nov 20, 2014

President: “Americans are tired of gridlock.”

In explaining why executive action was necessary, President Obama invoked the talisman of “gridlock.”

The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican President and every single Democratic President for the past half century. And to those Members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary. Meanwhile, don’t let a disagreement over a single issue be a dealbreaker on every issue. That’s not how our democracy works, and Congress certainly shouldn’t shut down our government again just because we disagree on this. Americans are tired of gridlock. What our country needs from us right now is a common purpose – a higher purpose.

For more, see my article Gridlock and Executive Power.

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Nov 20, 2014

Eight Observations About OLC Memo on Constitutionality of Executive Action on Immigration

I have now had time to read the OLC memo on the President’s immigration policy, and excerpted key segments here. There are number of fascinating insights in this 33-page document.

First, we learn that the President did not obtain an OLC memo for his 2012 DACA program. Rather, only oral advice was given. We also learn that OLC limited DACA, and explained that the deferred action could not be given as a class. Rather it must be given on a case-by-case basis.

Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particular- ized and acute than those underlying certain prior class-wide deferred action programs, the concerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.

This case-by-case standard is derived from precedents following Heckler v. Chaney.

Finally, lower courts, following Chaney, have indicated that non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676–77 (D.C. Cir. 1994). That reading of Chaney reflects a conclusion that case-by-case enforcement decisions generally avoid the concerns mentioned above. Courts have noted that “single-shot non- enforcement decisions” almost inevitably rest on “the sort of mingled assessments of fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion.” Crowley Caribbean Transp., 37 F.3d at 676– 77 (emphasis omitted). Individual enforcement decisions made on the basis of case-specific factors are also unlikely to constitute “general polic[ies] that [are] so extreme as to amount to an abdication of [the agency’s] statutory responsibilities.” Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all “general policies” respecting non-enforcement are categorically forbidden: Some “general policies” may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explain- ing that an agency’s use of “reasonable presumptions and generic rules” is not incompatible with a requirement to make individualized determinations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses “special risks” that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677.

DOJ draws the line at an “abdication.”

Further, although the proposed policy is not a “single-shot non-enforcement decision,” neither does it amount to an abdication of DHS’s statutory responsibili- ties, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at 676–77. The proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases.

Finally, we have proof that the DOJ OLC placed limits on Obama’s executive power–and he listened, unlike with Libya! (I had been wondering about this for some time).

My one caveat–and I need to study this closer–is whether there is a functional difference where a case-by-case analysis yields a 99% grant rate. If the review becomes something of a rubber stamp, the Heckler standard would not kick in.

Second, based on this initial device, the OLC memo makes a very strong effort at crafting a line between prosecutorial discretion and abuse of discretion. While there are many citations to Hackler v. Chaney, the argument boils down to this point: when deferrals must be made on a case-by-case basis, this does not amount to an abdication of enforcing the law, and a transformation into rewriting the law. This point is made several times but here is a clear restatement:

Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion. See supra p. 7 (citing Chaney, 470 U.S. at 833 n.4). And any new deferred action program should leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement. …

The fact that the proposed program would defer the removal of a subset of these removable aliens—a subset that ranks near the bottom of the list of the agency’s removal priorities—thus does not, by itself, demonstrate that the program amounts to an abdication of DHS’s responsibilities. …

This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens.

Third, the memo explains that deferring deportations of parents of U.S. Citizens or Lawfully Present Residents is permissible, because there is a path to citizenship for the parents, through the kids.

And in 1990, 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, Pub. L. No. 99- 603, 100 Stat. 3359 (“IRCA”). See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”); see also CRS Immigration Report at 10.

This is the argument I made concerning President George H.W. Bush’s deferrals. They are effectively temporary stopgap measures to prevent splitting up families where the parents will eventually have a pathway to citizenship.

The key difference between George H.W. Bush’s deferrals, and this one, is that these may last as long as 21 years, as children have to wait till they turn 21 to petition for visas for their parents. The H.W. Bush deferrals lasted maybe two years. But still, the legal principle behind the G.W. Bush deferrals extends here.

Finally, the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past, which provides some indication that the proposal is consonant not only with interests reflected in immigration law as a general matter, but also with congressional understandings about the permissible uses of deferred action. As noted above, the program uses deferred action as an interim measure for a group of aliens to whom Congress has given a prospective entitlement to lawful immi- gration status. While Congress has provided a path to lawful status for the parents of U.S. citizens and LPRs, the process of obtaining that status “takes time.” Cuellar de Osorio, 134 S. Ct. at 2199. The proposed program would provide a mechanism for families to remain together, depending on their circumstances, for some or all of the intervening period.

Parents of U.S. Citizens will generally have to wait till the child is 21.

The INA provides a path to lawful status for the parents, as well as other immedi- ate relatives, of U.S. citizens: U.S. citizens aged twenty-one or over may petition for parents to obtain visas that would permit them to enter and permanently reside in the United States, and there is no limit on the overall number of such petitions that may be granted. See 8 U.S.C. § 1151(b)(2)(A)(i); see also Cuellar de Osorio, 134 S. Ct. at 2197–99 (describing the process for obtaining a family-based immigrant visa).

Fourth, the memo makes clear that the parents of the DACA recipients are not eligible for deferrals due to the very important reason I noted yesterday–they do not have a pathway to citizenship. Therefore, this would not be a temporary gap.

But the proposed program for parents of DACA recipients is unlike the pro- posed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. …

Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition—as it has for VAWA self-petitioners and individuals eligible for T or U visas—or enabled their undocumented children to petition for visas on their behalf. Nor would granting deferred action to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implemen- tation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA.

This is exactly right. In the absence of a pathway to citizenship, the deferrals do not make sense.

Fifth, the memo address whether size matters. In effect, addressing whether this unprecedented expansion of power is lawful. First, it concedes that the size of the program exceeds that of any previous deferred action. This is correct, and rebuts the cable news talking point that this is perfectly consistent with what H.W. Bush did.

We recognize that the proposed program would likely differ in size from these prior deferred action programs. Although DHS has indicated that there is no reliable way to know how many eligible aliens would actually apply for or would be likely to receive deferred action following individualized consideration under the proposed program, it has informed us that approximately 4 million individuals could be eligible to apply. See Shahoulian E-mail. We have thus considered whether the size of the program alone sets it at odds with congressional policy or the Executive’s duties under the Take Care Clause.

In short, they argue that because a number cannot be easily drawn, they will not.

In the absence of express statutory guidance, it is difficult to say exactly how the program’s potential size bears on its permissibility as an exercise of executive enforcement discretion. But because the size of DHS’s proposed program corresponds to the size of a popula- tion to which Congress has granted a prospective entitlement to lawful status without numerical restriction, it seems to us difficult to sustain an argument, based on numbers alone, that DHS’s proposal to grant a limited form of administrative relief as a temporary interim measure exceeds its enforcement discretion under the INA.

Next, they try to put the number in context, explaining that H.W. Bush’s 1.5 million was a greater percentage of unlawful immigrants at the time.

Furthermore, while the potential size of the program is large, it is neverthe- less only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence. And although we are aware of no prior exercises of deferred action of the size contemplated here, INS’s 1990 Family Fairness policy, which Congress later implicitly approved, made a comparable fraction of undocumented aliens—approximately four in ten— potentially eligible for discretionary extended voluntary departure relief. Compare CRS Immigration Report at 22 (estimating the Family Fairness policy extended to 1.5 million undocumented aliens), with Office of Policy and Planning, INS, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population of 3.5 million in 1990); see supra notes 5 & 15 (discussing extended voluntary departure and Congress’s implicit approval of the Family Fairness policy). This suggests that DHS’s proposed deferred action program is not, simply by virtue of its relative size, inconsistent with what Congress has previously considered a permissible exercise of enforcement discretion in the immigration context.

I pause to note that this is a remarkable limitation imposed by OLC on the President’s power. I am very glad to see this actually exists. Though, it seems that DHS was okay with this authority.

Sixth, the memo repeats at several points a discussion of acquiescence. Congress has acquiesced to the President’s deferred action, and given the Executive a de facto license of sorts to proceed.

Congress has long been aware of the practice of granting deferred action, in- cluding in its categorical variety, and of its salient features; and it has never acted to disapprove or limit the practice.9 On the contrary, it has enacted several pieces of legislation that have either assumed that deferred action would be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens.

It specifically makes a Dames & Moore argument concerning acquiescence:

Apart from the considerations just discussed, perhaps the clearest indication that these features of deferred action programs are not per se impermissible is the fact that Congress, aware of these features, has repeatedly enacted legislation appearing to endorse such programs. As discussed above, Congress has not only directed that certain classes of aliens be made eligible for deferred action pro- grams—and in at least one instance, in the case of VAWA beneficiaries, directed the expansion of an existing program—but also ranked evidence of approved deferred action status as evidence of “lawful status” for purposes of the REAL ID Act. These enactments strongly suggest that when DHS in the past has decided to grant deferred action to an individual or class of individuals, it has been acting in a manner consistent with congressional policy “‘rather than embarking on a frolic of its own.’” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375 (1969)); cf. id. at 137–39 (concluding that Congress acquiesced in an agency’s assertion of regulato- ry authority by “refus[ing] . . . to overrule” the agency’s view after it was specifi- cally “brought to Congress’[s] attention,” and further finding implicit congression- al approval in legislation that appeared to acknowledge the regulatory authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981) (finding that Congress “implicitly approved the practice of claim settlement by executive agreement” by enacting the International Claims Settlement Act of 1949, which “create[d] a procedure to implement” those very agreements).

Seventh, in perhaps an indirect reference to attempts to defund the program, the memo notes that the action would be “borne almost entirely” by application fees–something Congress arguably cannot touch. I don’t think this point was inadvertent, as there are already debates about whether program can be defunded.

The deferred action program DHS proposes would not, of course, be costless. Processing applications for deferred action and its renewal requires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J., concurring in part and dissenting in part). But DHS has informed us that the costs of administering the proposed program would be borne almost entirely by USCIS through the collec- tion of application fees. See Shahoulian E-mail; see also 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)(1)(i)(C), (b)(1)(i)(HH). DHS has indicated that the costs of administering the deferred action program would therefore not detract in any significant way from the resources available to ICE and CBP—the enforcement arms of DHS—which rely on money appropriated by Congress to fund their operations. See Shahoulian E-mail. DHS has explained that, if anything, the proposed deferred action program might increase ICE’s and CBP’s efficiency by in effect using USCIS’s fee-funded resources to enable those enforcement divisions to more easily identify non-priority aliens and focus their resources on pursuing aliens who are strong candidates for removal. See id. The proposed program, in short, might help DHS address its severe resource limitations, and at the very least likely would not exacerbate them. See id.

Eighth, as for the line-drawing issue, the memo seems to acknowledge that Youngstown controls, and that executive discretion cannot be absolute.

Immigration officials’ discretion in enforcing the laws is not, however, unlimited. Limits on enforcement discretion are both implicit in, and fundamental to, the Constitution’s allocation of governmental powers between the two political branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587– 88 (1952). These limits, however, are not clearly defined. The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is “faithful[]” to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules.

I will withhold further judgment so I can consider the details more. I am slated to write an editorial in the Sunday L.A. Times on this topic, and a piece in National Review as well.

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Nov 20, 2014

DOJ OLC Memo: Deferral of Parents of Citizens Permissible, Deferral of Parents of DACA Recipients Not Permissible

The memo by Principal Deputy Assistant Attorney General Karl L. Thompson is available here. I’ll update the post as I read it. For now, here is the introduction and conclusion.

You have asked two questions concerning the scope of the Department of Homeland Security’s discretion to enforce the immigration laws. First, you have asked whether, in light of the limited resources available to the Department (“DHS”) to remove aliens unlawfully present in the United States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS’s proposed policy would prioritize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (“ICE”) Field Office Director determined that “removing such an alien would serve an important federal interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memorandum”).

Second, you have asked whether it would be permissible for DHS to extend deferred action, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for Childhood Arrivals (“DACA”) program.

As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants—may apply for authoriza- tion to work in the United States in certain circumstances, 8C.F.R. § 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an “economic necessity for employment”); see also 8 C.F.R. § 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien’s accrual of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admission of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS’s discretion. See Johnson Deferred Action Memorandum at 2, 5.

For the reasons discussed below, we conclude that DHS’s proposed prioritiza- tion policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS’s discre- tion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion.

In sum, for the reasons set forth above, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, but that the proposed deferred action program for parents of DACA recipients would not be permissible.

Read more after jump:

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Nov 20, 2014

Exclusive: Preview of President’s Address on Executive Power

My fellow Americans. I speak to you tonight to tell you something you already know–Washington, D.C. is broken. And with this gridlock, Congress has been unable to address the most critical issues of our day. You elected me to this office twice to get things done. I cannot stand by idly while there are serious problems that Congress refuses to address. To that end, I will take executive action to fix what ails our nation, and make the lives of millions of Americans much better. I am here tonight, to talk about a very important reform needed–tax reform.

The tax code is unfair and places the most severe burden on those who contribute the most to the economy. For far too long, millions of innovators were crushed by the burden of the IRS. I’ve tried to work with the Congress over the last 6 years to reform the tax code, but we could not reach a compromise. Fringe members of the Senate have filibustered every attempt to reform our punitive tax code, and efforts to promote economic flourishing. We just had an election, and the American people have spoken. Elections matter. I’ve heard their message loud and clear–we want tax reform.

It is with that support, that tonight I announce a new plan of executive action to address this vital topic.

First, I have asked the Secretary of Treasury to issue a 3% retroactive refunds to all Americans who paid income taxes during the 2019 tax year. If you paid money, you will get some back, and help spur economic growth. You may recall that this was one of the most popular planks of my tax reform bill that did not pass the Senate. Now, Americans will get the relief they need.

Second, I have worked with the Commissioner of Internal Revenue to rearrange our tax brackets. Going forward, all Americans will be subject to a 17% flat tax. No longer will those who earn the most be punished with higher rates of taxes.

Third, I have instructed the Department of Justice to defer all prosecutions for any tax payer that pays at least 17% of their flat tax, even if the old brackets suggest they owe more. Because I cannot actually change the tax code, I can only tell our prosecutors to leave alone those who comply with my new vision of tax reform. Further, the Attorney General will move to dismiss all indictments in cases where an individual has paid at least 17% of his income in past year.

Fourth, I am working with the Vice President to develop a future executive order waiving the corporate income tax. No longer should American companies be forced to ship jobs overseas to take advantage of lower tax rates. The United States should be the leader in the global economy. After privately consulting with the leaders of the great corporations in America, we will announce this policy in due time.

Now, those who oppose my plan may argue that as President, I cannot do this. They may contend that I lack the power under the Constitution to take such unilateral steps. I assure you, that this position is legally unassailable. There is a long tradition of Presidents using Executive Power under the auspices of prosecutorial discretion to shape policy. In 2014, President Obama cited his prosecutorial discretion to defer the deportations of five million immigrants. He argued that since Congress does not give him the power to deport everyone here unlawfully, he can pick and choose who to deport. While at the time I thought the President was wrong to do so, the fact that no court stopped him, has convinced me, and my lawyers in the Justice Department, that this is the correct constitutional duty.

So, to that end, Congress has not given me enough resources to prosecute all tax offenders. In truth, we can’t possibly audit everyone who files a fraudulent tax return. Our federal agents are simply unable to keep up. We simply cannot meaningfully enforce the complicated tax code as it is written. It’s broken. In order to conserve resources, we are shifting to a simple rule for enforcement–pay a flat tax. Therefore, with guidance given to the IRS, they will use a simple formula–17% of gross income. The returns will take a few moments to fill out, and even shorter time to review. If any additional payments are made, a refund will be issued. This is an effective use of federal employees.

Further, my United States Attorneys are overworked. Far too much of their time is spent prosecuting these trivial offenses, when violent crimes go unpublished. It is simply not a good use of their resources to go after hard-working Americans, who are crushed by a brutal tax code. Going forward, under the auspices of prosecutorial discretion, I will re-prioritize the work in the Department of Justice to focus on crimes that harm victims, and leave Americans to flourish and prosper. The United States Attorneys will instruct their staff to shift away from these crimes, and focus on those that really matter.

This announcement continues a long record of executive action I’ve used to shape policy around a gridlocked congress more interested in obstructing, than governing.

In 2017, in order to promote energy independence, I issued an executive order that exempted all hydro-facturing projects from onerous regulations and environmental crimes. As my home state of Texas has become a global leader in energy exploration, we need to promote the companies that are making America great.

In 2018, in order to make Social Security more stable–a project that President Bush started, but did not finish–I instructed the Secretary of the Treasury to refund 2% of all payroll taxes into Americans’ privatized retirement accounts. My executive order provided that the United States Government would also not prosecute those who chose not to pay that 2%, and instead invested it directly.

My greatest accomplishment in 2019 concerned the train wreck that was the Affordable Care Act. In the face of sky-rocketing premiums, rationing of treatment, and never-ending waits, I decided to put a halt to the suffering. I waived the individual mandate. Those who could not afford health insurance were not required to pay for it, and would not be subject to the individual mandate tax. If they decided to pay it, the Treasury Department would issue a refund. Those who declined to pay it would not be asked to. Further, I waived enforcement of the minimum essential coverage requirements. States were allowed to sell plans not compliant with the Affordable Care Act, giving states the freedom to experiment and choose the policies that best fit their citizens. Now, young and health people can buy the catastrophic plans they want.  Finally, I ordered my administration to stop collecting the so-called “cadillac tax” on plans that provide generous benefits. Now, if you like your policy, you can keep your policy. And that’s a promise I can keep.

At each stage I have been able to use my executive power to make America a much better country.

I value deeply my oath to “protect and defend the Constitution.” I will continue to do so, and take all steps within my legal authority to make this country great.

Thank you, and God Bless America.

Remarks of President Rick Perry from the White House, November 20, 2020.

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Nov 20, 2014

King v. Burwell May “Unravel The Law”

The Hill reports on a WSJ Op-Ed by the President of Kaiser Foundation, Drew Altman, who argues that if the Court invalidates the rule at issue in King v. Burwell, Obamacare will “unravel”

One of the country’s leading healthcare policy groups is raising alarms about the Supreme Court’s upcoming ruling on ObamaCare, warning that it could cut off subsidies for 13 million people and ultimately unravel the law.

Altman explains:

Because most people eligible for tax credits have modest incomes, the vast majority would not be able to afford any coverage without financial help and the ranks of the uninsured would become much larger than they would otherwise be. And because the very sick would be most likely to remain in the insurance markets, rates would spike and insurers would leave the markets, possibly causing the marketplaces in states with federally run exchanges to collapse. If that happened, the resulting firestorm would likely precipitate a political crisis forcing a negotiation between Democrats and Republicans in Congress to address the problem and potentially opening up discussion of other elements of the ACA in the process. In such a polarized Congress, the results of that sort of negotiation are impossible to predict.

Or, the President can decide to pay the subsidies anyway. I’m half expecting the SG to make that point. Maybe they can provide subsidies to the insurers directly through the risk corridors, or something ridiculous like that.

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Nov 20, 2014

What Happens The Day After King v. Burwell?

Sarah Kliff interviews Michael Cannon about his role in King and Halbig. Here is Michael’s response to what happens the day after King is decided. In short people will lose subsidies, and then no longer be subject to the individual mandate.

Michael Cannon: Unfortunately, there’s going to be a lot of dislocation that we would not have seen if the President had followed the law and we’d addressed all these issues in 2013.

There are going to be a lot of people who lose their subsidies. The reason it will be so painful for them to lose their subsidies, for most of those people, is because Obamacare increases the cost of the insurance to the point where they can’t afford it.

Sarah Kliff: You’re also knocking out the individual mandate in a way, too, because so many of these people would qualify for hardship exemptions. They wouldn’t be able to afford coverage without the subsidies.

Michael Cannon: Right. They won’t be able to afford exchange coverage once they are exposed to its full cost. That will be painful. But they also won’t be penalized for not buying it.

So what you do then is, you let the political process work. I would get rid of all the features of the law that are making their coverage so expensive. You get rid of community rating. You get rid of all the coverage mandates that are in Obamacare.

I guess what I’m talking about, if that happens and the Supreme Court rules in our favor, is my preference would be that Congress should repeal the whole thing.

For purposes of atmospherics, I think some policy shops should come up with plans of how states can react creatively to this decision, and offer policies that are non-compliant with Obamacare, but would be appealing to those no longer subject to the mandate. An amicus should address just this point.

Update: With “fodder” for Linda Greenhouse, Michael Greve explains what should happen the day after King:

To illustrate how far this has gone and how difficult it will be: in helping the ACA over the hurdle, the health insurance lobby, AHIP, sold the entire industry into government dependency. Unless the mandates stay intact and the subsidies keep flowing, the industry will cease to exist. So if the King plaintiffs win, it won’t be five minutes before Karen Ignagni—AHIP’s chief lobbyist—darkens Speaker Boehner’s and Senator McConnell’s doorway and begs for a fix. A bailout.

In that sure event, I ask my friend James Buckley to let mercy prevail and to entertain a friendly amendment to his phase-out proposal: one more federal grant, in the amount of $2,000. Conditional on Ms. Ignagni’s purchase of a one-way ticket to Siberia.

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Nov 20, 2014

Politico: White House may Release OLC Memo Today

In Politico, Josh Gerstein reports that the White House may release an OLC memo today.

It’s possible the White House will release a formal Justice Department Office of Legal Counsel opinion early Thursday setting forth a detailed legal justification for Obama’s actions, a person familiar with the situation said.

This is a good call, and something I’ve been asking about now for a few days. I would such a memo cites not only the past precedents of what other Presidents have done, but what are the limits of this authority, and whether it applies to other aspects of prosecutorial discretion.

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Nov 20, 2014

Legal Authority for Deferred Deportations of Five Million

In September, over 100 immigration law professors signed a letter explaing that the President has the authority to defer the deportations. While the letter is very thorough in its analysis of the immigration statutes, and relevant administrative codes, it does not completely answer one question: does the size of the group being exempted from deportation matter.

Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption. The administration could conceivably decide to cap the number of people who can receive prosecutorial discretion or make the conditions restrictive enough to keep the numbers small, but this would be a policy choice, not a legal question.23 A serious legal question would arise if the administration were to halt all immigration enforcement, because in such a case the justification of resource limitations would not apply. But the Obama administration to date appears to have enforced the immigration law24significantly through apprehensions, investigations, detentions and over two million removals.

To say that there is no legal authority does not resolve the question. To borrow from another debate we know all too well, an unprecedented exercise of federal power far beyond anything done before does not render it unconstitutional. (As I explained in a previous post, citations to President George H.W. Bush’s deferred deportations are quite different.) But such a novel exercise of power does render it constitutionally suspect. If this is something that could have been done before, it probably would have. The fact that it hasn’t been done in two centuries suggests maybe it cannot be done.

Further, the reason why we do not have any legal authorities on point, is that courts cannot get involved when the Executive engages in non-enforcement (See Gridlock and Executive Power). When the law is not enforced, no one is injured (in the legal sense. at least). Without an injury, there is no standing to bring suit, and thus there are no cases or controversy worthy of judicial resolution. Immigration advocates have argued that there are no legal precedents opposing the President’s actions–but this misses the important point about standing. There can’t be any cases on point! While the Court has recently reaffirmed that the President has broad powers to decide how to prioritize resources, there are no cases decided that challenge the President’s decision not to enforce the law. To say there are no authorities one way or the other is not to say the policy is constitutional, or unconstitutional.

Nonetheless, the Supreme Court is not the sole expositor of the constitutionality of the President’s actions. The Chief Executive himself bears the ultimate independent duty to his oath to “protect and defend the Constitution.” That is why I would want the President to release memos from the Office of Legal Counsel to explain the basis for this power. I am interested to see what “evolved” from last year, to this year.

Specifically, what are the limits, and does it apply to other areas of the President’s powers, such as criminal prosecution. Scott Greenfield observes:

Or marijuana, in states that have legalized the use, whether medicinal or recreational?  And what of the flip side, where by executive policy, the Attorney General informed his minions that in the exercise of their prosecutorial discretion, they were not bound by the canons of ethics? How about the exercise of discretion where it involves a policy to not seek the death penalty for any person who has an IQ below 80, or better yet, not at all? …

But if this sweeping exercise of prosecutorial discretion is constitutional, the ramifications for many of the outrageous failures of the criminal justice system suddenly shift. The executive can fix them, by mere fiat, based on prosecutorial discretion.  And if the executive says one thing and does another, then he has no excuse.

The President can only deport a small number of people subject to deportation, and can only prosecute a small number of crimes in Title 18. Is there a principled constitutional distinction between criminal prosecution and immigration? If so, what is the difference? If not, why has the President not exercised similar discretion in other areas?

Further, as I noted in my appearance on PBS–in a comment that seemed to alarm Gwen Ifill–what happens when a future President uses this power to do something you don’t like:

So, if I can indulge for a second, imagine a President Ted Cruz decides not to enforce environmental laws or imagine if a President Rand Paul decides not to enforce a corporate income tax. The president’s ability to suspend the laws and not enforce them raises serious implications.

I want to see what the legal implications are. Where are the limits of the ability of the president to not enforce the laws? I want to see, what are the memoranda making that point?

Even if the President thinks he has the constitutional power to proceed, we should understand what he views the limits of those powers to be. And if he can’t articulate the limits, then we should be very skeptical of this assertion in the first place. As we learned in a context we know all too well, limiting principles matter.

 

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Nov 20, 2014

Comparing President George H.W. Bush’s Deferral of 1.5 Million with President Obama’s Deferral of 5 Million

Recently, the Associated Press reported that President Obama’s pending executive order is “not without precedent,” as Presidents Reagan and H.W. Bush “did the same thing in extending amnesty to family members who were not covered by the last major overhaul of immigration law in 1986.” However, a close study of what the 40th and 41st Presidents did reveals that it is not the “same thing” as President Obama’s imminent action. Not even close.

In 1986, President Reagan signed into law the Immigration Reform and Control Act. 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 the applicant’s spouse and children who did not meet the residency requirement. This gap created millions of so-called “split-eligibility” families. Generally, when a person is naturalized, his or her spouse or children would in due course be eligible to apply for citizenship. However, under the IRCA, during this lengthy and cumbersome process, spouses and children would be subject to deportation.

In 1987, the Immigration and Naturalization Service put on hold the deportations of children under the age of 18, living with a parent who was on the path to citizenship. In effect, this temporary deferral of deportations was meant to give the parent the appropriate time to complete the naturalization process, and then allow the child to apply for citizenship. At this point, it made little sense to deport children whose parents would, in due time, become citizens, and by extension give citizenship to their children. Attorney General Edwin Meese’s policy focused on circumstances where there were “compelling or humanitarian factors” that counseled against deportations. The children would only need to wait until their parent’s status was final, so they too could apply for naturalization.

Following the change of administrations, in July of 1989 the Senate passed the Immigration Act of 1990 that would prohibit the deportation of the children and spouses of people who received amnesty under the 1986 IRCA. The Senate bill did not make it to a vote in the House until a year later in October 1990. Though, as the New York Times reported at the time, “passage of the new legislation seemed almost certain.” It ultimately passed by a vote of 231-192, with 45 Republicans voting yay, and 65 Democrats voting nay. Despite disagreements about the economics of the bill, the Times reported, “few dispute the humanitarian aim of uniting families.”

In the interim, between the Senate vote in July of 1989, and the House vote in October of 1990, spouses and children who would soon be provided with a pathway to citizenship, were still subject to deportation. In response, in February of 1990, INS Commissioner Gene McNary announced a new policy to expand the deferral of deportations to as many as 1.5 million spouses and children of those going through the naturalization process. This was a temporary stopgap measure to protect those who would soon be on the path, as long and arduous as it is, to naturalization.

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.” With the signing of the law, the executive 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 deferred prosecutions to keep together families, where a parent was about to be naturalized, and their spouse and children would receive citizenship in due course. It made little sense to rip apart families, when within a few years, the spouse and children would receive citizenship. As a 1990 article in the New York Times explained, a legal resident under the 1986 amnesty, who was on the path to citizenship, “would [soon] be able to file a petition for his wife to be granted legal status, a process expected to take about two years.” 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,” it teaches just the opposite lesson.  Presidents Reagan and Bush deferred deportations for family members who would ultimately be naturalized by virtue of their spouse or child. In sharp contrast, President Obama is deferring deportations for both the minors, and their families, in the hopes that one day Congress will grant them amnesty.

The fundamental disconnect is that in the former situation, those exempted from deportation had a path to citizenship, established by Congress. In the latter situation, no such path exists. Further, President Obama’s plan is not meant as a temporary stopgap measure while Congress finishes a bill in the works, but is meant as a 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. In effect, President Obama is attempting to bootstrap a future grant of amnesty based on his own 2012 deferral, which had the effect of protecting minors and not their families.

President George H.W. Bush’s deferred deportations were sandwiched by bipartisan statutes. President Obama’s deferred deportations of childhood arrivals in 2012, and imminent deferral of deportations for family members, is entirely unsupported by a statute. It’s an executive branch sandwich with nothing in the middle. Reagan and Bush’s deferrals are world’s apart from Obama’s plan.

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Nov 20, 2014

My Appearance on PBS News Hour Debating The Constitutionality of President Obama’s Executive Action on Immigration

Tonight, I appeared on the PBS News Hour to debate the constitutionality of President Obama’s executive action on immigration. Here is the video.

I would like to focus on a few of my comments, and elaborate them.

First, I tried to rebut the discussion that President George H.W. Bush’s deferral of 1.5 million sets a precedent for President Obama. As I noted in the NYT Room for Debate, and in a piece that I’ll post later, the positions are worlds apart:

So the president has a duty to take care of the law and to faithfully execute it.

So, while he does have discretion, I don’t agree that it’s absolute. I think the important point to make is, this goes far beyond what has been done before. It’s unprecedented. Frank mentioned that George H.W. Bush granted deferrals for 1.5 million. I think the key fact to remember is, these are people who are related to those being naturalized by the immigration laws.

So, it’s simply not the case. Here, President Obama imposed DACA for the dreamers. And now he’s going to add five million, six million more. None of these people under statutory law have any pathway to citizenship. This is really different than what was done before.

More precisely, all of the people H.W. Bush deferred had a path to citizenship (however long and arduous) through a naturalized spouse or parent. Deporting these people made little sense. In sharp contrast, the bulk of the people President Obama is deferring have no similar path.

Second, I explained that even though there is no formal amnesty (this is a huge misnomer), future presidents will effectively be estopped from taking any action against these five million:

Well, no, it’s not granting amnesty. You’re not giving them citizenship.

But what you are doing is giving them a legal status and working papers. What this does is make them effectively untouchable by future presidents. So, though in effect there’s no legal status, it makes it very difficult for any future presidents to take them out of that status.

So the president is giving the next person in office this situation to deal with.

Third, I repeated my call to see the DOJ OLC memos prior to this action:

So, I think the way we have to look at this is, what changed?

Until very recently, the president said over and over and over again he doesn’t have the authority to do this. Now he says his position is legally unassailable. I would like to see the memorandums from the Department of Justice explaining, what is the legal basis for this? What does this mean? What are the implications of this?

If he can do this, what else can he do? And we need to have this debate before the action happens, not afterwards.

Fourth, in the part that got Gwen Ifill’s attention the most, I posited what a President Ted Cruz or Rand Paul could do with such power.

GWEN IFILL: Is part of your concern that the people who will now be given this temporary protection will also be on a path to citizenship?

JOSH BLACKMAN: Well, I think the bigger issue is what this means for future presidents.

So, if I can indulge for a second, imagine a President Ted Cruz decides not to enforce environmental laws or imagine if a President Rand Paul decides not to enforce a corporate income tax. The president’s ability to suspend the laws and not enforce them raises serious implications.

I want to see what the legal implications are. Where are the limits of the ability of the president to not enforce the laws? I want to see, what are the memoranda making that point?

Ifill seemed concerned about how these rogue Republicans may govern, so she posed the question to Frank Sharry:

GWEN IFILL: But Josh Blackman makes the point, what if it’s something you don’t agree with that the president decides to do?

He smirked, and dodged the question, calling it a “smokescreen.”

Fifth, I veered into the politics, and stated the painfully obvious.

Well, simply because the president doesn’t get what he wants doesn’t mean he can do it anyway. We had an election. His party didn’t do very well. He had legislation. It didn’t go anywhere. He lost.

And sometimes, when you’re a politician, you have to take your losses and go home, despite the humanitarian concerns which I think are significant and Frank make valid points. You don’t get to do what you want when don’t have the votes in Congress. And each time the president has been in office, every successive elections, he has lost seats.

And now in his lame-duck session, when the Congress is about to begin its last term, he’s doing it now, when there are more elections to hold accountable. So I really think the fact that the president cited this gridlock in Washington as a justification for his executive actions is really a misnomer. He doesn’t have the power and he is choosing to do it anyway.

Sixth, I closed with my most important constitutional point I make in Gridlock and Executive Power–gridlock is part of our constitutional order.

Until the Congress is willing to approach and make a compromise, there’s nothing that can be done. And, frankly, that’s how our system works. Right? Our Constitution is not designed to be efficient. Gridlock is part of our constitutional order. For better or worse, we have checks and balances for a reason.

I paraphrased Justice Scalia’s opinion in Noel Canning, where he explained that “efficiency” is not part of our framework, and Gridlock is “not a bug to be fixed . . . but a calculated feature of the constitutional framework.”  Here they are in meme forms.

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I am really glad I got this point in. It was really tough to quote Nino verbatim on the fly, but this was close enough. (Giving this lecture a dozen times this semester has drilled the points into my head).

As an aside, this is a fraught topic with a lot of emotion, for very good reasons. I agreed with Frank’s discussion of the “humanitarian concerns” at issue here. As a matter of policy, I am very sympathetic to what President Obama is attempting to do, and support the legislation that stalled in Congress. But far more important than my policy preferences are the separation of powers. These checks agree for reasons far greater than any policy debates of the day.

As another aside, I lead off sentences with the words “so” and “well” way too often. I’ve noticed that before, but having my remarks transcribes really brings it into focus. I will try to cut down on those crutches.

As a final aside, here are some photos from the episode.

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And with the green screen:

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