Day: January 28, 2017

Nationwide Injunction (Stay, really) issued in Darweesh v. Trump

Shortly after 9 p.m. ET, Judge Ann Donnelly (EDNY) granted the ACLU’s Emergency Motion for Stay of Removal on behalf of a number of people who arrived at U.S. airports, pursuant to lawful visas or refugee applications, but were not admitted entry.

The order states that petitioners have shown a “strong likelihood of success” and that their removal would violate the Due Process and Equal Protection clause, and cause irreparable injury. (Note, this order only applies to those already in the country, and thus protected by the Constitution; the same analysis does not apply to those outside the United States).

As a result, the court issues what is effectively a nationwide stay, enjoining all of the named respondents, including President Trump, Secretary Kelly, and the acting director of the CBP, from the “commission of further acts and misconduct  in violation of the Constitution as described in the Emergency Motion for Stay of Removal.”

The critical part is what they are enjoined from doing:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.

Further, the court orders the Marshal for the Eastern District of New York to “take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.”

This opinion, though, only affects the small number of people who were in-transit when the order was issued, and arrived after it went into effect. The Constitution attaches to their status, and they cannot be held in violation of the Due Process Clause. The same analysis does not apply to aliens outside the United States.

Larry Tribe and I agree on the relief portion of the analysis, at least.

In any event, faster than you can say Trump, immigration advocates have switched positions, and are now supporting this nationwide injunction. It was appropriate in Judge Hanen’s court, and is appropriate in Judge Donnely’s court.

At this moment, somewhere in Washington, D.C., Noel Francisco is deciding whether to seek a stay from SCOTUS, as the 2nd Circuit is very unlikely to take any action here.

Update: See this thread for further thoughts:

Update 2: I downloaded a PDF of the order from Pacer. You can download it here.

Update: A Judge in EDVA granted a TRO forbidding the removal of petitioners stuck at Dulles International Airport, and requiring that they be given access to counsel.

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Pretext and the Establishment Clause

As the debate over President Trump’s executive order swirls, one argument has started to gain some ground: that the provision favoring “minority religions” that are persecuted amounts to a violation of the Establishment Clause. On it’s face, the executive order is neutral, and does not single out Christians or any other faith for preferential treatment.

(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

David Cole of the ACLU, however, counters that under the Establishment Clause, courts should scrutinize both the “intent and effect” of the order. For example, Cole noted:

Trump told Christian Broadcast News that it was intended to give priority to “Christians” seeking asylum over “Muslims.”

What we have here is a situation where the intent of the government official (an executive here, not the legislature) can import a non-secular purpose to a facially neutral law.

One of my first published articles addressed just this question: how the Court’s Establishment Clause jurisprudence analyzes the intent behind a law, even if it was facially neutral. In other words, to what extent are Courts willing to smoke out “pretext” in the context of adopting a law that favors one religion over another, or at all. I wrote This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose for a 3L seminar on the First Amendment, and it was published by the George Mason Civil Rights Law Journal.

The Court had adopted a fairly open-ended approach to divining non-secular purposes behind government actions.  For example, in McCreary County v. ACLU, Justice Souter explained:

In McCreary,195 Justice Souter asserts that “purpose matters” in the First Amendment context but relegates his cursory explanation of this critical question to an unremarkable footnote.196 He alludes to Justice Holmes’s famous maxim that a dog knows the difference between being kicked and being stumbled over197 and finds that “it will matter to objective observers whether posting the [Ten] Commandments [in a court- house] follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose.”198 Justice Souter continues, remarking that posting the Decalogue results in an “ostensible indication of a purpose to promote a particular faith [that] will have the effect of causing viewers to understand the government is taking sides.”199

This framework gave rise to the so-called “objective observer” test.

Inquiring into purpose under the Establishment Clause, according to Justice Souter, is neither “unpredictable [n]or disingenuous.”205 Justice Souter reasons that the purpose could in fact be objectively discovered and hints that searching for religious purpose, for instance, is a simple task, noting the “straightforward nature of the test.”206 Of what, exactly, this test consists, he does not say. But he does manifest the “objective observer” who considers the “external signs” that emerge from the “‘text, legislative history, and implementation of the statute.’”207 How to glean and aggregate the external signs seems to be an ad hoc process. Justice Souter finds that “scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.”208

In the remainder of the article, I walked through a number of the Court’s Establishment Clause cases, which look at various forms of extrinsic evidence to ascertain the purpose of the action.

First, in Epperson v. Arkansas, the Court relied on an advertisement placed in a newspaper, in support of the law forbidding the teaching of evolution in public schools.

Second, in Stone v. Graham, the Court invalidated a Kentucky law that required posting of the Ten Commandments in public schools. The Court offered no explanation as to why there was a forbidden purpose, stating perfunctorily, “the pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.” The Court pronounced that “no legislative recitation of a supposed secular purpose can blind [them] to the fact” that the Ten Commandments are a religious symbol.

Third, in Santa Fe Independent School District v. Doe, the Supreme Court found that a student-led, student-initiated prayer before high school football games violated the First Amendment and rejected the government’s proffered secular purpose. Here too, the Court cited post-enactment legislative history.

Fourth, in Wallace v. Jaffree, the Court struck down a law requiring a moment of silence in public schools, concluding that it lacked a clearly secular purpose. Unlike Epperson and Stone, where the Court did not even attempt to analyze legislative history, Justice Stevens devoted several pages of Jaffree to examining a detailed history of the enactment of the statute. Alas, much of it was post-enactment legislative history from a single member.

Chief Justice Burger strongly rebuked Justice Stevens’s strong reliance on this post-enactment legislative history and proclaimed, “The sole relevance of the sponsor’s statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that post-enactment statements by individual legislators are relevant in determining the constitutionality of legislation.”238

In general Burger is right, but the statements of the “sole organ” of government are, I think, especially relevant. I have argued for several years that President Obama’s statements about the scope of his executive power, with respect to DAPA and DACA are relevant to the constitutional analysis. In my article on the Take Care Clause, I wrote:

This conclusion is bolstered by the fact that prior to the defeats of DACA and DAPA, President Obama—the “sole organ” of the Executive Branch—consistently stated that he lacked the power to defer the deportations of millions by himself.19 Once the bills were voted down, however, he conveniently discovered new fonts of authority.

And, as I noted in the Harvard Law Review:

When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States govern- ment.411 This oft-cited dictum from United States v. Curtiss-Wright Export Corp.,412 originally voiced by Representative John Marshall in 1800, is seldom taken literally.413 Usually, courts listen to the “sole organ” speak through the form of general policy statements issued by an executive branch agency, or even developed by the Justice Department during the course of litigation. Seldom do we see such specific reflections from the Commander in Chief himself. Here, the President personally explained the contours of his own authority on a consistent and reasoned basis. That the comments of the only person elected to the highest office in the land were unscripted — and not prepared by an army of speechwriters — elevates this discourse. Further, these were not simply barbs about policy disputes, but explications about his presidential oath to “preserve, protect, and defend the Constitution of the United States.”414 As the President acknowledged during a town hall meeting on police violence, “I’m aware that my words matter deep- ly.”415 This may be particularly true when the President is, to borrow a phrase from Justice Frankfurter, “learned . . . in the law.”416 Indeed, President Obama has opined that his experience as an attorney makes his statements on executive power more authoritative than those made by members of Congress who are not “constitutional lawyers.”417 Per- haps most importantly, President Obama has defined the bounds of his own power in response to questions from we the people, the ultimate sovereigns in the United States and the source of his authority.418 These presidential pronouncements are not hollow utterances.

Uniformly, defenders of DAPA told me that these informal statements are irrelevant, because they represent political statements that are not meant to be informed legal analyses. Indeed, there was no precedent for this conclusion–Hamdan is to the contrary–a point which I conceded in my imagined opinion by Justice Scalia in U.S. v. Texas:

The president’s public statements, while not dispositive of his constitutional obligations, are relevant to the Take Care Clause calculus. Critically, these statements-against-interest are not “self-serving press statements.” Youngstown, 343 U.S. at 647 (Jackson, J., concurring); cf. Hamdan v. Rumsfeld, 548 U.S. 557, 623 n.52 (2006) (refusing the invitation to “defer[] to comments made by [Executive] officials to the media”).

I continue to maintain that these statements are relevant to ascertain pretext. (I am working on a piece titled “Sole Organ” of Social Media–use your imagination what that’s about).

One note in closing. Virtually all commentators assume that the Establishment Clause controls the President’s decisions concerning admissibility–an antecedent question to visa issuance–in the same fashion as does the Equal Protection Clause for people in the United States. This is not self-evident, and to my knowledge, no court has ever held this to be the case. The President has in many cases, under his Article II powers, favored some religious groups over others–Soviet Jews, for example, were preferred over Soviet Christians, precisely because of threats of religious persecution. Additionally, these cases have the chance to backfire on the ACLU. If the Supreme Court ultimately upholds the President’s decisions, citing his Article II powers over national security, as well as those powers delegated by Congress, it will further cement the plenary power of the Executive Branch over immigration.

 

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Will the Trump Administration Repudiate DAPA OLC Opinion?

One week into the Trump Administration, despite all of the other executive actions taken with respect to immigration, DACA and DAPA are still on the books. Indeed, DHS is still accepting DACA applications. Yet, the pieces seem to be in place not only to suspend those policies, but also repudiate the grounds on which they were issue. In the President’s executive order on “Enhancing Public Safety in the Interior of the United,” there are six references to “faithful execution.”

“order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed

“We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”

“Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens”

“Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States”

“I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens”

“Enforcement Priorities.  In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress”

The import of these statements is unmistakeable: the prior President’s actions were not faithful executions of the law. As a constitutional matter, I agree. (See my various amicus briefs, and articles making that point).

Bolstering this conclusion is a leaked draft memorandum, surfaced by Vox, which recommends the President rescind DAPA and DACA in light of the Take Care Clause.

Here we have yet another case where the President, pursuant to his own oath of office, interprets the Constitution without judicial guidance. If my students learn anything from me, the courts do not have a monopoly on interpreting the Constitution. But it is not enough to withdraw the DAPA and DACA policies.

Formalizing this decision, however, would also entail rescinding the November 2014 OLC Opinion that gave the green light to DAPA and DACA.  Section 5 of the proposed executive order does just that, instructing the Justice Department to not rely on that memo:

This step is short of OLC formally withdrawing the memo, as a future administration could (in theory at least) simply rescind the instant executive order, and choose to follow the opinion authored by Obama appointee Karl Thompson. The far-more preferable solution would be to ask OLC to take a second look at this opinion, and revisit it in light of the 5th Circuit’s opinion in U.S. v. Texas, the discover from Judge Hanen’s court about how much “discretion” was actually used, and even my articles criticizing the factual errors made by OLC). There is ample ground to determine the November 2014 opinion can no longer stand.

So far, there has not been any movement from OLC concerning DAPA and DACA. Carrie Johnson reported that DOJ would not comment if the OLC had approved the White House’s orders. “No comment,” they said. This is a non-story, as OLC seldom publicly comments on advice it provides to the President. Only a handful of opinions are actually published on the OLC web site. Former OLC chiefs Caroline Krass and Karl Thompson admitted that fewer and fewer formal opinions are sought to avoid FOIA requests.

This is a mistake. Unless an opinion has national security implications or classified information, there is no valid reason why the people should not be aware of the government’s constitutional justifications for their actions. My friend Alan Morrison is currently litigating this issue, arguing they should all be released under FOIA. But, they are not. For example, the Office informally “orally advised” the administration  concerning DACA, which we only learned about in a footnote for the DAPA opinion. Nor did the office release any opinion concerning hostilities in Libya–indeed, they opted not to reduce the opinion to writing because the President wasn’t going to follow it. Charlie Savage reported in Power Wars:

The not-hostilities rationale the administration put forward was controversial, even before the administration made it public. Other lawyers on Obama’s team did not endorse Bauer’s and Koh’s interpretation of the War Powers Resolution. Johnson told Bauer he was sticking with what he said in his discussion paper. Krass made clear that if Bauer asked the Office of Legal Counsel to write a formal, authoritative memo analyzing the question, she was unlikely to give the White House the answer it wanted to hear. DeRosa, who was subordinate to Bauer, kept her head down; her position was also in a state of flux, as she was slated to step down and hand over the role of National Security Council legal adviser to her deputy, Avril Haines, in early June. Late in the process, Holder— who had the authority to override the Office of Legal Counsel and come up with the official Justice Department interpretation of the law himself— told the White House that he was backing Krass. But Obama had already made the decision by then, and Holder registered the point mildly.

If indeed OLC was not consulted before these orders were issued–notwithstanding any public commentary–it would be, well, sad. The office has been defenestrated and degraded over the last sixteen years. I hope that in the Trump Administration, it makes a modicum of credibility.

 

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Movement Builds to use Congressional Review Act to Rescind Unconstitutional Social-Security Administration Gun Grab

In July, I co-authored a regulatory comment on behalf of the Cato Institute, opposing a proposed rule that would designate Social Security recipients who receive a “representative payee” as “mentally defective,” and thus disqualified to purchase firearms. This regime, which failed to offer even the most basic elements of due process, deprived people with disabilities of their civil rights. Much to my disappointment, the Obama administration published the final rule on December 19–just enough time for it to go into effect on the eve of the inauguration. Perhaps the outgoing government thought they pulled a fast one–not so fast.

Almost immediately after the rule was finalized, I engaged in talks with members of the Disability Rights community, as well as Senate and House staffers, to utilize the Congressional Review Act to nullify this midnight regulation. (I discuss the operation of the CRA here). In particular, I worked closely with Dara Baldwin of the National Disability Rights Network, and Samantha Crane of the Autistic Self Advocacy Network, to put together an editorial in The Hill to make the case for the CRA. Writing this piece was a valuable experience, because we had to find a unifying ground that would appeal to all parties, without reference to party. I think the essay accomplishes that goal. Here is a sample from Congress should rescind Social Security regulation that violates civil rights of those with disabilities:

Near the end of the Obama administration, a number of new regulations were published, including one from the Social Security Administration that crossed an unfortunate line. Under recently finalized rules, millions of Americans with a disability, who have shown no propensity to harm others, could be barred from acquiring firearms. This regulation stigmatizes Social Security recipients with a disability who request help to manage their financial affairs. Even worse, it deprives them of their civil rights without due process of law.

Fortunately, the 115th Congress can rescind this discriminatory rule through the Congressional Review Act, which allows the House and Senate to disapprove of a recently-finalized regulation. If the president agrees, the regulation is nullified. On this important issue, members on both sides of the aisle should stand together: individuals with a disability should not be scapegoated to advance gun control.

Although the appropriate response to gun violence can be a divisive question, these new regulations should alarm civil rights advocates. We must not respond to gun violence by scapegoating the disability community. Advocates across the political spectrum should come together and oppose this misguided regulation.

On the same day that our op-ed ran, Representative Kevin McCarthy, the House majority leader, flagged the social-security rule in his WSJ editorial:

The bureaucracy under President Obama has also threatened America’s constitutional rights. A new rule from the Social Security Administration would increase scrutiny on up to 4.2 million disabled Americans if they attempt to purchase firearms. This would elevate the Social Security Administration to the position of an illegitimate arbiter of the Second Amendment. And in an affront to basic due process, the bureaucracy has attempted to blacklist from federal contracts any business accused of violating labor laws—before the company even has a chance to defend itself in court.

With President Trump’s signature, every one of these regulations will be overturned. In the weeks to come, the House and Senate will use the Congressional Review Act to repeal as many job-killing and ill-conceived regulations as possible. That’s how to protect American workers and businesses, defend the Constitution, and turn words into actions.

And, in perhaps the most important development, the NRA supports this repeal:

“Congress’s decision to review the Obama administration’s back-door gun grab is a significant step forward in protecting a fundamental constitutional right for law-abiding gun owners,” Chris Cox, the NRA’s top lobbyist, said in a statement Wednesday.

“The NRA has been fighting this unconstitutional government overreach since its as first discussed and we look forward to swift congressional action,” he added.

But this is not strictly a gun-control issue. As our Hill op-ed reveals, this issue is of great importance to the disability rights community. There is more coverage in the AP and Reuters.

Congress should rescind this unconstitutional deprivation of civil rights, and permanently disable the agency from enacting a “substantially similar” rule.

 

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South Dakota v. Dole, NFIB v. Sebelius, and Sanctuary Cities

Once, and only once, has the Supreme Court held that clawing back federal funding violates the principles of federalism. Under the Affordable Care Act (ACA), if a state refused to expand its Medicaid rolls, the federal government threatened to withhold all of its Medicaid funding. For example, the Obama administration warned Arizona that it stood to lose nearly $8 billion of federal funding, which was nearly a quarter of its state budget. The Supreme Court observed that across the board, “Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs.” In other words, states stood to lose on average 10 percent of their budgets for failing to comply with Obamacare. Back in 2012, California and a dozen other states urged the Supreme Court that this policy was perfectly lawful. “Although withdrawing from” Medicaid “may be difficult and politically unpopular,” they wrote, “it remains an option.”

Fortunately for California and other sanctuary states—today at least—seven Justices disagreed with their position.  The ACA’s “financial ‘inducement,’” explained Chief Justice Roberts, “is much more than ‘relatively mild encouragement’—it is a gun to the head.” Because “pressure turned into compulsion,” the Court concluded, the ACA’s Medicaid expansion was unconstitutional. Today, blue states proudly shroud themselves in the Obamacare decision they once opposed.

Alas, not every effort to withhold money from noncompliant states is unconstitutional. Congress routinely dangles aid to encourage states to comply with federal programs. For example, South Dakota challenged a law that would withhold 5 percent of otherwise available federal highway funds if the state refused to raise its drinking age to 21. In 1987, the Supreme Court upheld this law, finding that “Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose.” However, the amount at issue was miniscule. In the Obamacare case, the Court pointed out that “the federal funds at stake,” roughly $4 million, “constituted less than half of one percent of South Dakota’s budget at the time.”

President Trump’s recent executive order on immigration threatens to withhold from sanctuary jurisdictions all “Federal grants, except as deemed necessary for law enforcement purposes.” New York City’s comptroller general indicated that the City could lose roughly $9 million in grants. The Big Apple has a total budget of nearly $90 billion. The withheld funds would constitute less than one-hundredth of one percent of the City’s budget. This falls far short of the 10 percent figure at issue in the Obamacare case, an amount that progressive states told the Supreme Court was not coercive. But if California and New York seek to urge the Court to expand its federalism principles, and make it harder for the federal government to coerce states to act, I would be all too happy to join along in their fight.

As I wrote in on NRO shortly before the inauguration, Conservative attorneys general, rather than waiting on the sidelines, should gladly point out to the Court this necessary departure from the Obamacare case. And more specifically, they can flag all of the other federal programs, which threaten to withhold comparably small amounts—including many environmental regimes—are now at risk of invalidation in subsequent litigation. In the long run, a unanimous decision that puts more teeth into the spending-clause jurisprudence inures to the benefit of red states.

 

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