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Scope of Federal Powers III

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

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

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

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

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

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

Steward Machine Company v. Davis (1937)

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

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

Here is their modern-day image.

United States v. Butler

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

And some cartoons.

South Dakota v. Dole

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

Printz v. United States

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

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

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

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

Sheriff Richard Mack at the Utah Capitol.

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

More pictures of Sheriff Printz

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

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

Here are the highlights:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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