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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.

 

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.

 

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.

 

On January 18, I was the guest on Heartland with Louie B. Free (no relation to Johnny B. Goode) on WYCL-AM 1540 in Ohio to discuss Unraveled. You can listen here:

Since the beginning of December, Judge Gorsuch has been firmly perched atop the short-list on the FantasyJustice prediction market from LexPredict. I recently spoke with Dick Wolf at USA Today, who profiled our market.

WASHINGTON — Before the last time a Supreme Court seat was filled, court watchers and legal beavers who ventured on to the “FantasySCOTUS” website correctly predicted it would be Elena Kagan.

If the survey proves prescient again, Colorado’s Neil Gorsuch could be President Trump’s guy.

Gorsuch, 49, who sits on the U.S. Court of Appeals for the 10th Circuit, has led a field of 22 potential nominees listed on the site since shortly after Trump’s election. At last count, he had 649 votes to 512 for Alabama’s more controversial William Pryor, the early favorite among both conservatives and cognoscenti.

The Supreme Court nerds who frequent FantasySCOTUS aren’t as impressed with the other two judges said to be among Trump’s finalists. Michigan’s Raymond Kethledge is in 8th place with 160 votes; Pennsylvania’s Thomas Hardiman is 10th with 91.

“I was shocked that Judge Gorsuch shot up so quickly at the outset,” says Josh Blackman, a South Texas College of Law professor who founded the online prediction market in 2009. “I think this is one case where the ‘wisdom of the crowds’ actually identified the leading candidate long before everyone else.”

FantasySCOTUS allows attorneys, law students and others to predict how justices will vote on cases pending before the high court, with winners and prizes announced at the end of each term. The chance to guess who will fill a vacancy has only come around once since the site was created.

That was in 2010, when President Obama chose Kagan, then the U.S. solicitor general and a former Harvard Law School dean, to replace the retiring Justice John Paul Stevens. Voters on the site were way ahead of Obama, predicting early that Kagan would outpace other potential nominees — including federal appeals court Judge Merrick Garland, who got the nod after Justice Antonin Scalia’s death last year but was blocked by Senate Republicans.

“These are not random people on the street,” Blackman, 32, says of the thousands who participate on FantasySCOTUS. “They’re people who follow this closely.”

That doesn’t mean the voting is completely reliable. Some participants tried to game the system by voting multiple times, until a filter was used to prevent more than one vote per IP address. “They have an interest in their guy winning,” Blackman says.

Trump’s favorites are thought to be federal appeals court judges — including, at least until recently, Wisconsin’s Diane Sykes, who is fifth in FantasySCOTUS voting. But ahead of her is Minnesota Supreme Court Justice David Stras, a 42-year-old long shot, with more than 400 votes. And Sen. Ted Cruz is a credible seventh with 170 votes — despite not being on Trump’s list at all.