Nov 26, 2014

ABA Journal Profiles FantasySCOTUS and {Marshall}+

12141214OSCOTUS250pxFantasySCOTUS and {Marshall}+ are profiled in the December ABA Journal Magazine. Here are my pull quotes:

The predictor is the brainchild of law professors Josh Blackman, Michael Bommarito and Dan Katz. It is based on a mathematical concept called the ensemble tree model [sic: it should be extremely random trees], which adapts and changes as it gains more information, Blackman says.

“The goal of ensemble is to find out what people do better and what computers do better, and then we can calibrate them to judge appropriately,” says Blackman, an assistant professor at South Texas College of Law. “This isn’t about computers running roughshod over lawyers. This is about using intelligence to make the best decisions.” …

Blackman plans to pit the predictor against his FantasySCOTUS league during the court’s current session.

While the profs think humans will win this year, they expect the computer model to succeed in the future.

And it’s not just for fun. Blackman sees a “strong enough market for lower court analytics that this will eventually come there and be in widely available use for lawyers at that level.”



Read More
Nov 26, 2014

President: “I just took an action to change the law.”

As President Obama was heckled by protestors who urged him to stop all deportations, he admitted perhaps a bit too much.

“Now, you’re absolutely right that there have been significant numbers of deportations. That’s true. But what you are not paying attention to is the fact that I just took an action to change the law.”

This isn’t the first time the President has admitted he changed the law. In August, he admitted that he made a “temporary modification” to Obamacare:

One of the main objections that’s the basis of this suit is us making a temporary modification to the health care law that they said needed to be modified.  (Laughter.)  So they criticized a provision; we modify it to make it easier for business to transition; and that’s the basis for their suit.  Now, you could say that, all right, this is a harmless political stunt — except it wastes America’s time.  You guys are all paying for it as taxpayers.  It’s not very productive.  But it’s not going to stop me from doing what I think needs to be done in order to help families all across this country.  (Applause.)


Of course, in both cases, what he meant to say was that based on his prosecutorial discretion, he re-prioritized his enforcement decisions.

Read More
Nov 25, 2014

The OLC Memo Casts Serious Doubt on the Legality of DACA

The Office of Legal Counsel’s Memo premises the legality of deferred action for the parents of U.S. Citizens in light of the fact that the children, once 21, will be able to petition for a visa for their parents. However, the parents of DACA beneficiaries cannot received deferred prosecution because they have no path to citizenship, and will not be able to petition for a visa. If this is in fact true, how can DACA be legal?

Two recent posts in the Balkinzation symposium on immigration make this point well. First, David A. Martin states the issue very well:

The opinion actually raises significant questions about the Obama Administration’s own signature exercise of expansive prosecutorial discretion, the 2012 DACA program that shields childhood arrivals from deportation.  And it is disingenuous about key elements of its reasoning and its analysis of the new programs in operation. ..

By this analysis, DACA itself is drawn into question. (Ahilan Arulanantham flags this issue in his post, but from a different angle.)  DACA cannot at present be seen as an interim measure; Congress so far has refused to pass the DREAM Act. And it’s hard to see how DACA aligns with earlier policies that Congress has implicitly blessed.  The opinion cryptically acknowledges this difficulty in its footnote 8 (p. 18), which says that OLC gave oral advice on DACA before it was launched, and then mumbles about DACA resting on “humanitarian concerns . . . consistent with the types of concerns that have customarily guided . . . enforcement discretion.”  What kind of legal guidance is this?  Humanitarian concerns are certainly involved with the proposal to let DACA parents stay – indeed with almost any proposal for expansive use of deferred action.  (In myview, DACA was a valid exercise of prosecutorial discretion, largely because it covers only a small percentage of removable aliens and because it shields only those not culpable for the initial immigration law violation.)

It’s almost as though OLC felt it had to draw a line in the legal sand somewhere or else there would be no end to the pressures on the executive branch to add new groups to the deferred action list.  In any event, the OLC opinion will prove useful to the President in this respect.  He has never been good about saying No to the immigrant advocacy community and then standing by that answer. (He should have said firmly at the time of DACA that DACA is as far as he is going to go using executive action, and insisted then that any further relief will have to be won in Congress.  By failing to do so, he kept much of the advocates’ advocacy and anger directed at himself rather than Congress. The OLC opinion may give him what he needs to deflect future demands.)

Even more troublesome is the fact that I noted before–the statute is drawn in a way to make relief virtually automatic. Ther eis almost no room for discretion, so any pretense of a case-by-case analysis is mere sophistry.

But perhaps most inaccurate is OLC’s assessment of factor 4. A class-based program, the opinion says, has to leave room for individualized denial “even if the applicant fulfills all the program criteria.”  It is “the guarantee of individualized, case-by-case review” (p. 23) that keeps a class-based program from amounting to a rewrite of the laws.  In actual operation, however, the new deferred action programs will function so that anyone who meets the class-based criteria will be virtually guaranteed a grant.

The DHS memos setting up the program dutifully recite the words “case-by-case,” but as OLC acknowledges, they do not specify what would count as a factor that “would make the grant of deferred action inappropriate” (p. 29). OLC sees this vagueness as giving the deciding officer substantial discretion.  But in the real world, vagueness means that officers will be deeply reluctant to deny deferred action to someone who meets the class-based criteria (which already include disqualification for most criminal offenses). Throughout the Obama administration, advocates have been vigilant in raising hell whenever an individual officer’s charging decision seems to depart from internal guidance, even in the application of the normal ad hoc prosecutorial discretion priorities.  If officers are going to deny someone who meets the class-based requirements, they need to know what enforcement-linked factors will be accepted by their supervisors as a valid basis for doing so. The DHS memos provide no such fortification.

Zachary Price alludes to the same issue:

Contrary to what some argued before the OLC opinion, categorical deferred action cannot be justified as just another form of conventional agency priority-setting.  A conventional agency priority is just internal agency guidance and avoids assuring non-enforcement to any specific party.  Deferred action, although formally revocable, aims in practice to provide security from removal to its beneficiaries (and to enable certain other immigration benefits).

(It is also worth noting that the opinion’s careful effort to root deferred action for parents of citizens and LPRs in specific statutory policies concededly does not apply to DACA itself.  DACA instead depends on an analogy to past humanitarian exercises of group-based deferred action, even though, as the opinion puts it, those past actions typically involved more “particularized and acute” concerns.)



Read More
Nov 25, 2014

All Lectures from My Property I and Property II Classes

Yesterday was the last day of the semester. I record all of my classes, and live-stream them onto YouTube. Based on analytics, I know students far outside of Houston watch them, and I often receive notes from students at law schools across the country. If anyone is reviewing for a Property exam, these are great resources.

With the playlists, each class is organized by topic (If you click the “Playlist” link in the upper left-hand corner of the video, you can see all the videos in the class.).

Property I (Fall 2014)

If you click the “Playlist” link in the upper left-hand corner of the video, you can see all the videos in the class.

View class page.

Property II  (Fall 2014)

If you click the “Playlist” link in the upper left-hand corner of the video, you can see all the videos in the class.

View class page.

You can view all of my old lectures here.

Read More
Nov 25, 2014

Schumer: Focusing on Obamacare in 2009 “Blew Opportunity”

The 2008 election was not about health insurance. As I recount in Unprecedented, health care reform was the second highest-priority on election day in 2008. Throughout much of the election, Obama and Clinton sparred on who covered more. The plan candidate Obama presented against McCain was not even his ultimate plan. Ultimately, Obama stole Clinton’s plan. Yet, once in office, the President deemed passing health care reform as his “legacy” and put aside all legislative priorities to do so. With a super-majority in Congress, the President could have done immigration, climate change, and so many other goals. But he put all of his eggs in one basket. I observed in Unprecedented that this was a mistake, that is coming back to haunt a President with a serious lack of legislative accomplishments.

Who agrees with me? Chuck Schumer.

“Unfortunately, Democrats blew the opportunity the American people gave them” in electing Obama and a Democratic Congress in 2008 amid a national recession, Schumer of New York said in a speech in Washington. “We took their mandate and put all our focus on the wrong problem — health care reform.”

Democrats should have addressed issues aiding the middle class to build confidence among voters before turning to the health-care system overhaul, Schumer said. He spoke at the National Press Club to analyze the results of this month’s election, when Republicans took control of the Senate and increased their majority in the House of Representatives.

Read More
Nov 25, 2014

Protests at #SCOTUS

Apparently no one told the protestors that the First Amendment does not apply on the steps of the Supreme Court.

Read More
Nov 24, 2014

Democrat Objects To Jonathan Turley Using GW Law Students on Obamacare Suit

Rep. Robert Brady (D-Pa.), the ranking member of the House Administration Committee writes to Rep. Candice Millier (R-Mich.), chairwoman of the committee, objecting to various aspects of Jonathan Turley’s representation of the House of Representatives about Obamacare. Most striking, is paragraph 5, which objects to Turley using George Washington Law Students on the case!



Unpaid law students who have “not passed the bar” will be “exploited!” The horrors. The best part, is that the letter seeks a professor of legal ethics to write that there is a “basis in law and in fact for a legal proceeding to commence.”


Read More
Nov 24, 2014

Vote for on ABA Journal Blawg 100

If you like this blog, please take a moment to vote for the ABA Journal Blawg 100. This year I am in the Profs category.


Josh Blackman’s Blog

Law prof Josh Blackman caused a stir on April Fool’s Day this year when he announced on his blog that he and his colleagues had created a computer algorithm that could predict U.S. Supreme Court outcomes. The next day, the co-founder of FantasySCOTUS swore it wasn’t a joke. In July, he announced that the computer model actually existed and had proved to have about a 70 percent accuracy rate based on past cases. We can’t wait to see the results in upcoming Supreme Court terms as he pits his algorithm against the dedicated players of FantasySCOTUS.

Read More
Nov 24, 2014

Kathleen Sebelius on Jonathan Gruber: “There couldn’t have been more open discussions”

On a dreary day, enjoy this laugh, courtesy of Kathleen Sebelius:

“I think Jonathan Gruber’s comments are just offensive and flat-out wrong. There couldn’t have been more open discussions,” Sebelius said in a rare appearance on CNN’s “New Day.” …

She dismissed Republican criticism that the numbers had been intentionally inflated, saying it was “absolutely a mistake.”

“Transparency has been a huge part of this program,” she said. “There was a lot of speculation that would wouldn’t get anywhere near 7 million, so I think that’s good news.”



Read More
Nov 24, 2014

Prosecutorial Discretion With Rubber Stamps

In my previous post, I questioned whether there can in fact be “prosecutorial discretion” when a rubber stamp is used. Specifically, if a process is set up whereby everyone meets certain clerical requirements–whether paperwork is correctly filed–can the process really be subject to any discretion? This is ministerial, not prosecutorial. As an example, I cited a Brookings study that showed that only 1% of DACA applicants were denied.

Some more research suggests that the stamps were more rubbery than I thought. Judicial Watch obtained through FOIA requests a number of documents concerning how DHS made the process of granting DACA deferrals even easier.

Some of the findings include:

  • Field offices were asked to conduct only “lean and lite” background checks rather than full TECS background checks.
  • Applicants without ID were still to be processed for biometric processing.
  • There were widespread waivers of the fees.

And it goes on and on. The general gist is the procedures were set up to grant as many of the applications as possible. Despite the insistence on prosecutorial discretion, the process seemed stacked to defer everyone who meets the bare clerical requirements, and even then defer those that do not.

To make something clear, when discussing the deferral of millions, using discretion to go *above and beyond* the criteria to defer more does not count as the type of discretion we are talking about. That poses an even greater “special risk” when the minimum criteria set up are not complied with. The valid discretion at issue here, would be to *not* defer people for reasons or factors particular to the case. It seems the Administration’s policy was to eliminate as much discretion to deny, and maximize the discretion to grant.

The memo concerning the 2014 IAEA uses similarly capacious language as the 2010 memo. There’s no reason to think there will be any additional room for agents to deny applications. The presumption will be, grant everything that can conceivably be granted. Plus, the same overworked offices trying to handle 1 million applicants will now be swamped with 4 million. This process may be automatic.

Even if the OLC’s memo is correct that a broad policy of deferral is permissible so long as cases are adjudicated on a case-by-case basis, on the ground,  the facts are very different.

Read More
Nov 23, 2014

Modern Day M’Culloch v. Maryland: Utah To Cut Off Water To NSA Data Center

The landmark case of M’Culloch v. Maryland arose when Maryland attempted to impose a tax on the Bank of the United States branch in Baltimore. Ultimately, in the process of holding that Congress had the necessary-and-proper authority to charter the Bank, Chief Justice Marshall explained that it was thus unconstitutional for a state to tax a federal instrumentality. This rule stands to this day (though there was some litigation over whether federal judges could be required to pay state income tax–they can).

Utah seems to be cooking up a modern-day M’Culloch! A lawmaker in the Beehive State wants to shut off the water flowing to the NSA’s massive data center.

Lawmakers are considering a bill that would shut off the water spigot to the massive data center operated by the National Security Agency in Bluffdale, Utah.

The legislation, proposed by Utah lawmaker Marc Roberts, is due to go to the floor of the Utah House of Representatives early next year, but it was debated in a Public Utilities and Technology Interim Committee meeting on Wednesday. The bill, H.B. 161, directs municipalities like Bluffdale to “refuse support to any federal agency which collects electronic data within this state.”

The NSA brought its Bluffdale data center online about a year ago, taking advantage Utah’s cheap power and a cut-rate deal for millions of gallons of local water, used to cool the 1-million-square-foot building’s servers. Roberts’ bill, however, would prohibit the NSA from negotiating new water deals when its current Bluffdale agreement runs out in 2021.

This bill, to punish a federal agency, would seem to be pre-empted under the logic of M’Culloch, unless I’m missing something else?

Read More
Nov 23, 2014

President Explains His Executive Action

On This Week, George Stephanopoulos asked the President about his executive action on immigraiton:

STEPHANOPOULOS: So you had a friendly crowd out there but a pretty fierce Republican reaction in Washington. The Speaker this morning says your acting like an emperor and you’re damaging the presidency. Your response?

OBAMA: Well, my response is pass a bill. You heard me out there today and you heard me yesterday. The truth is that the Senate did a good job in crafting a bipartisan bill that would have greatly improved our immigration system, and my preference is for a legislative solution to this problem.

STEPHANOPOULOS: But that didn’t happen.

OBAMA: It didn’t happen because the Speaker would not call the bill for a vote in the House. And he still has several weeks to call that bill in the House or he can work with me and Democrats to craft a new bill.

STEPHANOPOULOS: He says that’s not going to happen now.

OBAMA: And the point is that ultimately, Congress has a responsibility to deal with these issues. And there are some things that I can’t do on my own. What I do have is the legal authority to try to make the system better, given the resource constraints that we have, we have to prioritize…

The Senate has no “responsibility” to do anything. They can vote for, or against bills, or not vote at all. They have constitutional duties. (Read Article I. The word “shall” appears only with respect to receiving the State of the Union). But do you know who has a “shall” in their duties? The President, who “Shall take care the laws [are] faithfully executed.”

Steph also pinned POTUS down on his “evolution” on executive power:

STEPHANOPOULOS: But you have done more than you used to think you can do. You know several times over the last couple of years you were asked can you do more and you said nope, I am out of administrative flexibility, what changed?

OBAMA: Well, that’s not true, if you look George, I often times was asked: ‘Can you just halt deportations?’ And I said, ‘No I can’t do that.’

STEPHANOPOULOS: No, but I have it right here–

OBAMA: Go ahead–

STEPHANOPOULOS: On a Google Hangout, you were asked specifically, “‘What can you do to prevent families from being broken apart’ and you said, ‘I’m not an emperor, I am out of administrative flexibility.’”

OBAMA: I–I–George, what is absolutely true is that we couldn’t solve the entire problem and still can’t solve the entire problem. But what we can do is to prioritize felons, criminals, recent arrivals, folks who are coming right at the border, and acknowledge that if somebody’s been here for over five years, they may have an American child or a legal permanent resident child, it doesn’t make sense for us to prioritize them when we know that we need more resources-

After this evasion, Steph distinguished when Reagan and H.W. Bush did, because it followed a bipartisan statute.

STEPHANOPOULOS: But do you have the right to make that decision on your own?

OBAMA: Absolutely. If you look, every president – Democrat and Republican – over decades has done the same thing as I mentioned in my remarks today. George H. W. Bush, about 40% of the undocumented persons, at the time, were provided a similar kind of relief as a consequence of executive action–

STEPHANOPOULOS: But you know the response of both Reagan – but in that case, there were bipartisan bills passed, they were acting after the bills were passed, not because Congress did not act.

OBAMA: Well George, I’m not sure that argues in favor. If Congress acted specifically and left something out and then a President goes ahead right afterwards and does more than Congress agreed to, it’s actually not different. It’s similar. The fact is is that we exercise prosecutorial discretion all the time. And, you know, the primary response that I have to Speaker Boehner and others is go ahead and pass legislation. They don’t need me to act. In fact, I encourage them to act but in the meantime what we’ve got to make sure of is, number one that our borders are secure and what I’m doing is going to allow us to put more resources there, number two it’s going to allow us to focus on the people that we really want out. Number three, what it allows us to do is to say to folks who have been here for a while, register, we’re gonna submit — you’re going to submit to a criminal background check and you’re going to pay taxes. Why we would prefer a system in which they’re in the shadows, potentially taking advantage of living here but not contributing makes no sense.

His answer is non-responsive.

Steph then turns to the example of a future President who wants to lower taxes (I’ve raised this exact scenario before).

STEPHANOPOULOS: How do you respond to the argument, a future president comes in, wants lower taxes. Doesn’t happen. Congress won’t do it – he says I’m not going to prosecute those who don’t pay capital gains tax.

OBAMA: Well, the truth of the matter is, George, that the reason that we have to do prosecutorial discretion in immigration is that we know we are not even close to being able to deal with the folks who have been here a long time. The vast majority of folks understand that they need to pay taxes, and when we conduct an audit, for example, we are selecting those folks who are most likely to be cheating. We’re not going after millions and millions of people who everybody knows are here and were taking advantage of low wages as they’re mowing lawns or cleaning out bedpans, and looking the other way – but then you got politicians suddenly going out there saying, suggesting somehow that we should be deporting all of them. Everybody knows, including Republicans, that we’re not going to deport 11 million people.

STEPHANOPOULOS: So you don’t think it’d be legitimate for a future president to make that argument?

OBAMA: With respect to taxes? Absolutely not. But what is true – what is true today is we don’t audit every single person, but we still expect that people are going to go ahead and follow the law. And we have limited resources, we have to make sure that we prioritize those folks who are most dangerous and we should acknowledge what everybody has already acknowledged through their actions – and Congress acknowledges through their budget – which is we’re not in the business of deporting millions of people or breaking up families.

There is nothing in the President’s response which explains why future Executive can decline to audit tax offenders.

The President also inadvertently called it “Obamacare.”

STEPHANOPOULOS: Ted Cruz says that now Republicans should block every nomination going forward. Your friend Senator Tom Coburn is wondering about possible violence. What do you think about those reactions?

OBAMA: Well, you know, there’s often a lot of rhetoric coming out of Congress, uh, and in Washington. But it doesn’t match up to what I think the American people expect. What the American people expect is that if we disagree on one thing, then we disagree on that thing. And then we work on everything else. One of the habits that we’ve seen in Congress over the last four years since the House Republicans took over, is that everything becomes hostage to one disagreement. So a couple of years ago it was Obamacare, the Affordable Care Act. And they decided, “We’re gonna shut down the government because we disagree with this one law.”

In one of the more delusional responses, he said his approach to executive power was “very restrained.”

STEPHANOPOULOS: How much has your view of executive power changed over the years? I remember when you were a senator you used to warn about presidents over-reaching, yet a lot of your critics now say you’re doing it more than anyone else. Has your view of executive power changed?

OBAMA: It actually hasn’t, George. If you look – the history is that I have issued fewer executive actions than most of my predecessors, by a longshot. The difference is the response of Congress. And specifically the response of some of the Republicans. But if you ask historians, take a look at the track records of the modern presidency, I’ve actually been very restrained. And I’ve been very restrained with respect to immigration. I bent over backwards and will continue to do everything I can to get Congress to work. Because that’s my preference.


Read More
Nov 23, 2014

Universal Studios Used Same Courthouse in To Kill a Mockingbird and Back to the Future

Here’s a fun fact. The Universal Studios backlot used the same set for the Courthouse in To Kill a Mockingbird and Back to the Future!

Check out this backlot tour of UNiversal Studios from 1989 to hear it from the guide (2:58).

Read More
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!”

Read More
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.

Read More
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

Read More
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.

Read More
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.”

Read More
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.

Read More
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.

Read More