Nov 18, 2015

Prop2 Class 27 – Regulatory Takings – Balancing III

The lecture notes are here.

This is the original bungalow from Nolan.

Here is an aerial view of the new Nollan house.

nolan1 nollan2

This is the strip of beach behind Nolan’s house where the California Coastal Commission wanted to have an easement.

Here is a photo of the store from Dolan v. City of Tigard, and the creek behind the store.

Here is an aerial view of the property from Dolan.

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Nov 18, 2015

ConLaw Class 27 – The First Amendment Speech II

The lecture notes are here.

The First Amendment Speech II

  • Brown v. EMA (887-900).
  • United States v. O’Brien (900-907).
  • Texas v. Johnson (907-917).
  • Time, Place, and Manner Regulations (917-918).
  • Renton v. Playtime Theaters (918-924). Incitement (924).
  • Clear and Present Danger (927-931 note 3).
  • Brandenburg v. Ohio (935-937).
  • Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015)
  • Reed v. Town of Gilbert (2015)
  • Note on Central Hudson (979-980).

This was the proposed speciality license plate in Walker v. Texas Div., Sons of Confederate Veterans


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Nov 17, 2015

Video Lectures for Constitutional Law and Property

One of the greatest joys of this blog, is how students across the country use it to learn more about the law. As I travel to different schools, students often come up to me and thank me for offering these videos. As you or your friends prepare for final exams, I hope you can use the video lectures I post for all of my classes. Here are the lectures from this semester:

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

Constitutional Law (Fall 2015)

View class page.

Property II (Fall 2015)

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Nov 17, 2015

#SCOTUS Goes Hollywood: Abel v. United States and “Bridge of Spies”

In Steven Spielberg’s new film, Bridge of Spies (which I haven’t yet seen), there is a re-enactment of oral arguments in Abel v. United States (1960). In two brief clips from the trailer (starting at 2:00) , you can see Tom Hanks in a morning coat (no he is not the Solicitor General), and a wide-angle shot of the Court. It looks fairly accurate. The bench is curved, the curtains are the right color, and you can even see the bronze gates on the wings. They didn’t quite capture the grand hallway behind the Court, there doesn’t seem to be a bar between the general audience section, the floor is marble and not carpet, there are individual seats and not the rows of benches, there do not appear to be seats on either side including where the press sits, and the lectern does not seem to be the proper height. But this is a heck of a lot more accurate than the awful representation of #SCOTUS in “Woman in Gold.”



Update: Garrett Epps writes about the real court case behind Bridge of Spies, Rudolf Ivanovich Abel, also known as ‘Mark’ and also known as Martin Collins and Emil R. Goldfus, Petitioner, v. United States.:

Abel—an implacable enemy of the United States at the height of the nuclear standoff—came remarkably close to succeeding. Donovan fought gamely for his client’s Fourth Amendment rights; he also convinced the district judge to spare Abel’s life on the grounds that he might be useful in a swap later. (In the film this is depicted as taking place in an improper secret talk with the judge, but in reality the argument was made in open court.) That happened, and five years later, Rudolf Abel walked across the Glienicke Bridge between Potsdam and East Berlin, where he was met by Soviet intelligence.

Bridge of Spies is the best picture of a good lawyer I have ever seen. As Donovan, Tom Hanks is both restrained and implacable. Donovan fought hard for Abel, and the case cost him dearly. “In fact,” Kahn told me, the film “might even have undersold how much of a political risk he took.” Donovan ran for Senate in 1962 and was beaten badly.


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Nov 16, 2015

Hopefully with a sense of irony, Law School Plagiarist Joe Biden autographs Bluebook with “Pay Attention.”

Via Above The Law, we see that VP Joe Biden signed a Syracuse University Law Student’s Bluebook with the apt message “Pay Attention.”


He should have taken his own advice when he was a law student at Syracuse, as he plagiarized his law review note.

The New York Times reported in 1987:

The file distributed by the Senator included a law school faculty report, dated Dec. 1, 1965, that concluded that Mr. Biden had ”used five pages from a published law review article without quotation or attribution” and that he ought to be failed in the legal methods course for which he had submitted the 15-page paper.

The plagiarized article, ”Tortious Acts as a Basis for Jurisdiction in Products Liability Cases,” was published in the Fordham Law Review of May 1965. Mr. Biden drew large chunks of heavy legal prose directly from it, including such sentences as: ”The trend of judicial opinion in various jurisdictions has been that the breach of an implied warranty of fitness is actionable without privity, because it is a tortious wrong upon which suit may be brought by a non-contracting party.” Just One Footnote

In his paper, Mr. Biden included a single footnote to the Fordham Law Review article.

In a preview of things to come, the young Joe Biden defended himself by saying, if I wanted to cheat, I wouldn’t have been so blatant. (Yes, that was really his defense).

In a letter defending himself, dated Nov. 30, 1965, Mr. Biden pleaded with the faculty not to dismiss him from the school.

”My intent was not to deceive anyone,” Mr. Biden wrote. ”For if it were, I would not have been so blatant.”

At another point, the young Mr. Biden said that ”if I had intended to cheat, would I have been so stupid?”

”I value my word above all else,” the impassioned letter said. ”This is a fact which is known to all those who are or have been acquainted with my character.”


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Nov 16, 2015

Tribe on Obergefell: The Double Helix of Equal Dignity

One of the more frustrating aspects of teaching Obergefell is how Justice Kennedy made an absolute hash of the Court’s own due process and equal protection jurisprudence, explaining that the rights somehow work together in tandem. Larry Tribe does his utmost to help make sense of Kennedy’s opinion in the Harvard Law Review.

The core around which Justice Kennedy wound the double helix of Equal Protection and Due Process, and the rubric under which fundamental rights should be evaluated going forward, is what I will call the doctrine of equal dignity.

What a beautiful image–the “Double Helix”  of “Equal Dignity.” The clauses of the Constitution aren’t as important as how they could work in tandem to promote another doctrine that is not in the Constitution–“dignity.”


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Nov 16, 2015

Prop2 Class 26 – Regulatory Takings – Balancing II

The lecture notes are here.

Here are a series of diagrams to explain the property at issue in Lucas.
















Lake Tahoe is a large freshwater lake on the border of Nevada and California.

View Larger Map

This is the land at issue in Severance v. Patterson:


This is Carol Severance, the plaintiff in the case.


You can also learn about the recent Texas Supreme Court opinion, Severance v. Patterson, concerning easements on the beach of the Gulf Coast here and here.

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Nov 16, 2015

ConLaw Class 26 – The First Amendment – Speech I

The lecture notes are here.

The First Amendment – Speech I

  • The Addition of the Bill of Rights (43).
  • Amemdment Process – Article V (817-818).
  • Amendments Outside Article V (821-822 notes 14 and 15).
  • Barron v. Baltimore (48-53).
  • The BIll of Rights (827-831).
  • The First Amendment (831-839).
  • New York Times v. Sullivan (853-861).
  • Chaplinsky v. New Hampshire (880-884).
  • Categorical exclusions (885-887).

Barron v. Baltimore

Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.


This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.


Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.


Here is a transcript of the advertisement.

The New York Times

“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
– New York Times editorial
Saturday, March 19, 1960

Heed Their
Rising Voices

As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.  In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….

In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.  When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy.  Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.

Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement.  Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest.  For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement.  Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence.  They have bombed his home almost killing his wife and child.  They have assaulted his person.  They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.”  And now they have charged with “perjury”-a I under which they could imprison him for ten years.   Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South.  Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.  The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.

Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.  But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others.  The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…

We must heed their rising voices-yes-but we must add our own.

We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.

We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.

Your Help is Urgently Needed…NOW!!

L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.

Sullivan is standing to the right of the horse.


Here is Sullivan talking with police officers.


Here is Sullivan with his family in 1962.


Chaplinsky v. New Hampshire

Are these fighting words?


Walter Chaplinsky, a Jehova’s Witness, would often preach in Rochester, New Hampshire’s Central Square.




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Nov 15, 2015

Texas v. United States Makes Slate’s Weekly News Quiz

The answer is “Immigration reform.”cA5


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Nov 15, 2015

Texas v. United States Nine-Part Series, Plus my Articles and Briefs on DAPA

It took me nine posts to make it through the Fifth Circuit’s 135-page divided opinion in Texas v. United States. Here is a summary of the posts:

  1. Part I of my analysis focused on standing analysis in Texas v. U.S.
  2. Part II focused on reviewability.
  3. Part III looked at the procedural APA claim.
  4. Part IV looked at the substantive APA claim.
  5. Part V analyzes how the dissent frames DAPA.
  6. Part VI analyzes the dissent’s standing analysis.
  7. Part VII looks at the justiciability issue.
  8. Part VIII analyzes the dissent’s section on the APA Procedural Claim.
  9. Part IX looks at the dissent’s APA substantive claim section.

Also relevant, here are links to articles and briefs I wrote about this case:

I’ve followed this case closely since November of 2014, and now it is starting to really gain velocity as it hurdles to the Supreme Court. Stay tuned.

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Nov 15, 2015

Texas v. U.S. Part IX – The Dissent on the Substantive APA Claim

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. Part VI analyzes the dissent’s standing analysis. Part VII looks at the justiciability issue. Part VIII analyzes the dissent’s section on the APA Procedural Claim. Part IX looks at the dissent’s APA substantive claim section.

Judge King faults the majority for “stretch[ing] beyond the judgment of the district court” and finding that DAPA amounts to a substantive APA violation. The dissent characterizes the majority’s argument:

The argument that DAPA is a substantive APA violation, as I read it, appears to be the following: (1) DAPA is “manifestly contrary,” Majority Op. at 66, to the text of the INA and deserves no deference partly because Congress would not assign it such a “decision[] of vast ‘economic and political significance,’” id. at 62 (citation omitted); and (2) even if DHS deserved deference, DAPA is not a reasonable interpretation of the INA.

The dissent reject’s the majority argument that DAPA fails at step one because Congress has never “precisely prohibit[ed] or addresse[d] the kind of deferred action provided for under DAPA.”

Congress has never prohibited or limited ad hoc deferred action, which is no different than DAPA other than scale.58 In fact, each time Congress spoke to this general issue, it did so incidentally and as part of larger statutes not concerned

On the issue of scale, the dissent has a lengthy footnote on the “scope” of DAPA:

The majority makes much of the scope of DAPA in concluding that it violates the APA. See Majority Op. at 56, 59. Yet the conclusions regarding DAPA’s legality are similarly applicable to ad hoc deferred action. Ad hoc deferred action triggers the same eligibility for benefits and Congress has not directly mentioned it by statute. It should follow then that ad hoc deferred action is also not authorized by the INA and is a substantive APA violation. But this cannot be the case for the reasons mentioned below. Despite the majority’s emphasis on the scale of DAPA, its size plays no role in whether or not it is authorized by statute. I am aware of no principle that makes scale relevant in this analysis, and the majority does not cite any authority otherwise. The question of whether an agency has violated its governing statute does not change if its actions affect one person or “4.3 million” persons. Id. at 56.

This isn’t quite right. Even the OLC Opinion distinguishes between the “ad-hoc” and “class-wide” grants of deferred action.

We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.

Further, ad hoc grants do not suffer from the same discretion-problems, as each application is indeed purely discretionary.

But what about the specific stumbling blocks that Congress has placed for the parents of U.S. citizens to receive an adjustment of status? The dismiss explains those are not clear statements, and are not enough to rebut the presumption.

The majority makes a similar mistake with respect to the work authorization regulation, 8 C.F.R. § 274a.12(c)(14). The majority holds that this regulation as “to any class of illegal aliens whom DHS declines to remove– is beyond the scope of what the INA can reasonably be interpreted to authorize.” Majority Op. at 40. It bases its conclusion on provisions of the INA that specify classes of aliens eligible and ineligible for work authorization and scattered statements from past cases supposedly stating that Congress restricted immigration to preserve jobs from American workers. Yet, much like with deferred action, Congress has never directly spoken to the question at issue and, if anything, has indirectly approved of it. … Had Congress wanted to negate this regulation, it presumably would have done so expressly, but by specifying the categories of aliens eligible for work authorization, Congress signaled its implicit approval of this longstanding regulation.

The dissent next rebuts the King v. Burwell argument about “decisions of vast economic and political significance.”

The majority next holds that DAPA, fails Chevron step one because the INA’s broad grants of authority “cannot reasonably be construed as assigning [DHS] ‘decisions of vast economic and political significance,’ such as DAPA.” Majority Op. at 61–62 (footnote omitted). To the contrary, immigration decisions often have substantial economic and political significance. … And deferred action—whether ad hoc or through DAPA—is not an effort by DHS to “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001), but rather “[a] principal feature of the removal system,” Arizona, 132 S. Ct. at 2499.

The majority’s reliance on King v. Burwell, 135 S. Ct. 2480 (2015), for its conclusion is misplaced. The Court in King held that it was unlikely Congress delegated a key reform of the ACA to the IRS—an agency not charged with implementing the ACA and with “no expertise in crafting health insurance policy.” Id. at 2489. By contrast, DHS is tasked with enforcement of the immigration laws, see, e.g., 6 U.S.C. § 202, and its substantial expertise in this area has been noted time and time again. …

It is hard to see how DAPA is unreasonable on the record before us. DAPA does not negate or conflict with any provision of the INA. See Whitman, 531 U.S. at 484. DHS has repeatedly asserted its right to engage in deferred action. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000) (concluding an agency was not entitled to deference where it previously disavowed its enforcement authority). And DAPA appears to further DHS’s mission of “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).

That’s it for this 10-part series. Stay tuned to what happens next.


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Nov 15, 2015

Texas v. U.S. Part VIII – The Dissent on the APA Procedural Claim

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. Part VI analyzes the dissent’s standing analysis. Part VII looks at the justiciability issue. This part will look at the APA Procedural Claim.

Judge King places the burden of proving a likelihood of success on the merits to demonstrate that DAPA is “non-discretionary.”

As the majority admits, the Memorandum “facially purports to confer discretion.” Majority Op. at 44. But the district court ignored this clear language, concluding that agency officials implementing DAPA will defy the Memorandum and simply rubberstamp applications. In so doing, the district court disregarded a mountain of highly probative evidence from DHS officials charged with implementing DAPA, relying instead on selected excerpts of the President’s public statements, facts relating to a program materially distinguishable from the one at issue here, and improper burden-shifting. The majority now adopts the district court’s conclusions wholesale and without question.


The posture of this case on a preliminary injunction is such that the district court’s rulings on findings of fact are reviewed under a clearly erroneous standard. In any event, the majority found most (but not all) of Judge Hanen’s findings were not error, under any standard. At bottom, Judge King is correct that the majority found that extrapolating from DACA, that DAPA would offer true discretion–but they stopped short at adopting the district court’s finding of “pretext.” (See Part III). As I’ve noted in previous posts, a key inquiry is the depth of scrutiny the court affords the policy, and whether it looks only at the four corners of the document.

The majority recognizes that the plain language of Memorandum “facially purports to confer discretion” and does not argue that DAPA creates a substantive rule from its four corners alone. Majority Op. at 44. Nonetheless, the district court reached the opposite conclusion. And it bears identifying the errors committed by the district court in holding that DAPA was a substantive rule on its face.

Whether the Court confines its analysis to the “four corners” of the memorandum, or considers the history of DACA as well as the legislative defeats that occurred before DAPA, will determine the outcome of the case.

Beyond the memorandum issue, Judge King explains that reliance on DACA’s track record is not probative.

I am left with such a conviction for three independent reasons: (1) the record lacks any probative evidence of DAPA’s implementation; (2) the district court erroneously equated DAPA with DACA; and (3) even assuming DAPA and DACA can be equated, the evidence of DACA’s implementation fails to establish pretext. … Nor should pretext be found here absent such evidence. As noted at the outset, courts should not be quick to conclude that when a coordinate branch of government describes a policy as discretionary, it does not mean what it says. … With respect to the former, this single, nebulous statement does not specify how the DAPA and DACA processes would be similar; the phrase cannot be construed to mean that DAPA and DACA will be implemented identically. The latter is pure burden- shifting—the district court implies that the burden is on DHS to show that the two programs will be implemented differently. Of course, in the preliminary injunction context, Plaintiffs, “by a clear showing, carr[y] the burden of persuasion.” … But the burden of showing DAPA is non-discretionary was on Plaintiffs—the States—and Plaintiffs provided no evidence as to the number of these denials. Rather, the district court accepted as true Plaintiffs’ bare assertion that there were no such denials, concluding unequivocally that “[n]o DACA application that has met the criteria has been denied based on an exercise of individualized discretion.”




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Nov 15, 2015

Texas v. U.S. Part VII – The Dissent on Justiciability

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. Part VI analyzes the dissent’s standing analysis. This Part looks at justiciability.

Judge King’s dissent agreed with Judge Higginson’s dissent from the denial-of-stay action that this case is non-justiciable.

The dissent seeks to explain that both the Enforcement Priorities Memorandum (which the states do not challenge) and the DAPA Memorandum (which the state did challenge) are unreviewable.

Plaintiffs concede that if the DAPA Memorandum is only an exercise in enforcement discretion—without granting any “additional benefits”—it is unreviewable under 5 U.S.C. § 701(a). … Even the district court concluded that “decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch.” Dist. Ct. Op., 86 F. Supp. 3d at 645. But those are exactly the type of decisions the DAPA Memorandum contemplates. The Memorandum is a statement embodying the Secretary’s tentative decision, based on an assessment of the best uses of DHS’s limited resources and under his congressionally delegated authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), not to remove qualifying applicants for a certain period of time. In other words, deferred action itself is merely a brand of “presumptively unreviewable” prosecutorial discretion. 

The soul of DAPA depends on whether you accept, or reject this characterization. If both the Enforcement Priorities Memorandum, and the DAPA Memorandum accomplish the same goal of establishing priorities, than both are unreviewable. If deferred action, along with its interstitial benefits, is nothing more than prosecutorial discretion, then DAPA would not be subject to judicial review. But if–as Texas (and I) argue–that the DAPA memorandum does far more than merely set priorities, but indeed takes action that is contrary to the statutory regime, it is reviewable, and unlawful.


King adds that any benefits that are “triggered” by deferred action are not a result of the DAPA memorandum itself, but longstanding regulations.

To the extent the exercise of deferred action “trigger[s]” other benefits, those are not new or “associated” benefits contained within the DAPA Memorandum itself. Majority Op. at 35–36.19 Rather, those benefits are a function of statutes and regulations that were enacted by Congresses and administrations long past—statutes and regulations which, vitally, Plaintiffs do not challenge in this action. The ability to apply for work authorization, the benefit on which the district court most heavily relied, has been tied to deferred action by a federal regulation since the early 1980s. … It is this regulation, not the DAPA Memorandum, which affords those granted deferred action the ability to apply for work authorization. … The majority nevertheless states that § 274a.12(c)(14) as applied “to any class of illegal aliens whom DHS declines to remove—is beyond the scope of what the INA can reasonably be interpreted to authorize.” Majority Op. at 40. This broad holding is very damaging to DHS’s immigration enforcement policy, which has operated, from time to time, on a class-wide basis. It stems from a deeply flawed reading of the INA that I discuss below. … Accordingly, DAPA itself grants no new rights or benefits. It merely announces guidelines for the granting of deferred action (which may trigger benefits under this framework of preexisting law) in an effort to “encourage [qualifying individuals] to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.”26 Appx. A, at 3. Even absent this announcement, the above benefits would attach to any grant of deferred action.

Judge King adds that “lawful presence” and “deferred action” are nothing more than an exercise of prosecutorial discretion:

Thus, “lawful presence” does not “confer[] legal status upon its recipients,” Dist. Ct. Op., 86 F. Supp. 3d at 637 n.45 (emphasis added), nor does it constitute “a change in designation,” Majority Op. at 38. Rather, both “lawful presence” and “deferred action” refer to nothing more than DHS’s tentative decision, revocable at any time, not to remove an individual for the time being—i.e., the decision to exercise prosecutorial discretion. Even the majority acknowledges that, at its core, “deferred action [is] a nonprosecution decision.” … That a prior statute or regulation ties a benefit to the exercise of prosecutorial discretion does not make that ordinarily unreviewable exercise of prosecutorial discretion reviewable or turn it into “affirmative agency action.”

Judge King next rejects that this policy amounts to an “abdication” under Heckler, citing the fact that the government has been removing people in “record numbers.”

Nor can it possibly be maintained that this exercise of prosecutorial discretion may be reviewed because DHS, which has been removing individuals from the United States in record numbers, “‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”

In a footnote, the court rejects the district court’s determination that the analysis should be cabined to those at issue with the memo:

In determining that DHS has adopted such a policy, the district court reasoned that “the Government here is ‘doing nothing to enforce’ the removal laws against a class of millions of individuals.” Dist. Ct. Op., 86 F. Supp. 3d at 663 (quoting Texas, 106 F.3d at 667). But by cabining its sample size only to DAPA-eligible individuals, and ignoring DHS’s record number of enforcement efforts against others, the district court’s conclusion was preordained. Under the district court’s logic, if DHS grants deferred action to ten individuals, it would have “abdicated its duty” to enforce the immigration laws as to those ten individuals— rendering that action reviewable. Reading Heckler’s narrow exception so broadly would swallow the general rule that “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” Heckler, 470 U.S. at 832. The majority does not appear to endorse this misrepresentation today.

Judge King’s analysis on justiciability is stronger than Judge Higginson’s, and will give the Solicitor General a footing for his cert petition.


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Nov 14, 2015

Hillary Clinton on #DAPA #DemDebate

During the November 14 Democratic Debate, Secretary Hillary Clinton was asked about the President’s executive action on immigration. Her answer, again, was muddled.

COONEY: Thank you. Now, Secretary Clinton said you would go further than the President when it comes to taking executive action to implement immigration reforms. But the President’s already facing legal trouble on this. We’ve seen it more just in the past week. Realistically, how could you go further with executive action?

CLINTON: Well, first of all, I know that the President has appealed the decision to the Supreme Court.

He has announced that he will appeal, but a cert petition hasn’t been filed yet.

And my reading of the law and the Constitution convinces me that the President has the authority that he is attempting to exercise with respect to dreamers and their parents, because I think all of us on this stage agree that we need comprehensive immigration reform with a path to citizenship.

DAPA does not protect the parents of Dreamers, but Clinton has said that she would expand the executive action so it would cover the parents of Dreamers (see here and here).

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Nov 14, 2015

Hillary Clinton on 2001 AUMF #DemDebate

During the November 14 Democratic Debate, Secretary Hillary Clinton was asked whether she would declare war on ISIS. Her answer, which invoked the 2001 AUMF, was muddled:

DICKERSON: A couple of days ago you were asked if you would declare war on ISIS and you said no. What would you say now?

CLINTON: Well, we have an authorization to use military force against terrorists. We passed it after 9/11.

The 2001 AUMF does not cover force against “terrorists.” It covers force against Al Qaeda. Clinton added that she would want to update the 2001 AUMF–not repeal it.

DICKERSON: And you think that covers all of this?

CLINTON: It certainly does cover it. I would like to see it updated.

At least she insists a new AUMF would have to be enacted.

DICKERSON: If you were in the Senate, would you be okay with the commander in chief doing that without it coming back to you?

CLINTON: No, it would have to go through the Congress, and I know the White House has actually been working with members of Congress. Maybe now we can get it moving again so that we can upgrade it so that it does include all the tools and everything in our arsenal that we can use to try to work with our allies and our friends, come up with better intelligence.

You know, it is difficult finding intelligence that is actionable in a lot of these places, but we have to keep trying. And we have to do more to prevent the flood of foreign fighters that have gone to Syria, especially the ones with western passports, that come back. So there’s a lot of work we need to do and I want to be sure what’s called the AUMF, has the authority that is needed going forward.

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Nov 14, 2015

Adam White on Chief Justice Roberts

You should read Adam White’s profile of the Chief Justice. Beyond his usual insightful commentary, Adam has gone through (seemingly) everything John Roberts has ever said about the Court. The mark of a good piece on the Supreme Court is whether I learn something new–and there is a lot of new material here.

White boils down the analysis to three key questions about the Chief, rather than trying to force a single, unifying theme:

For if one reviews not just his judicial opinions on the Supreme Court and D.C. Circuit, but also his confirmation hearings, his scattered writings, and the speeches he has given, then a handful of common themes emerge. They are not hard-and-fast rules for deciding individual cases. They do not explain his entire body of work. And they certainly are not without tensions or contradictions. But they do seem to highlight at least some of the themes that Roberts has grappled with throughout his career and are stated best not as answers but as questions: [1] What is the federal government’s role in America? [2] What is the Supreme Court’s role in the federal government? And [3] what is the chief justice’s role on the Supreme Court?

For the first question, Adam closes with a strong connection between Justice Jackson and Justice Roberts, and includes a reference from his confirmation hearing where Roberts told us exactly what he was going to do–by laughing.

His approach in King may draw comparisons to Marshall, but on these separation-of-powers issues Roberts might be better compared to another of the great justices. Robert Jackson is remembered for his key opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952), in which he asserted Congress’s predominance over the president, rejecting President Truman’s attempt to take over the U.S. steel industry during the Korean War. At the time of the case, the administration cited Jackson’s own work as FDR’s attorney general, defending a seemingly similar World War II-era takeover of an aviation company. In a footnote, Jackson distinguished FDR’s seizure from Truman’s, but he also rejected the notion that his judicial view should echo his earlier views from the Justice Department: “I should not bind present judicial judgment by earlier partisan activity.”

A half-century later, when Democratic senators cited John Roberts’s work in the Reagan administration as evidence of how he would act as chief justice, Roberts pointed to Jackson’s example in Youngstown. “[H]ere is someone whose job it was to promote and defend an expansive view of executive power as attorney general, which he did very effectively,” Roberts explained, “and then when he went on the Court .  .  . he took an entirely different view of a lot of issues, in one famous case even disagreeing with one of his own prior opinions. .  .  . And that’s, again, one reason many admire him, including myself.”

Halfway through his answer, Senator Patrick Leahy interrupted him: “Are you sending us a message?” The hearing transcript then reads, “[Laughter.]” Except, as we now see, Roberts was serious.


The more I learn about Roberts, the more I realize that he told us exactly what he was thinking–but we weren’t listening.

For the second question, Adam closes with a sharp conclusion of the risk of the Chief trying to avoid political holdings–as that in and of itself can be viewed as political.

Roberts’s desire for the Court to be (and appear) non-political is laudable. But at a certain point, this desire begins to resemble that of his fellow Hoosier, Mitch Daniels, calling on conservatives to support a “truce” in the culture wars. No matter how the Court conducts itself, legislatures will pass political laws; presidents and governors will enforce political regulations; litigants will file lawsuits challenging them or defending against them. (And judges, appointed politically, will decide them.) This is hardly a new development—​Tocqueville noted 180 years ago that “there is almost no political question in the United States that is not resolved sooner or later into a judicial question.” If Roberts’s effort to exercise judicial self-restraint leads him to calibrate (or be seen as calibrating) his judgment in light of the political environment around him, he will, ironically, seem political.

For the third question, White explains Roberts’s veneration for the Chief Justices–four in particular.

It shows, in speeches replete with lessons he has learned from his predecessors. (He’ll offer another such speech in New York later this month, on Chief Justice Charles Evans Hughes.) Noting that portraits of four of the greatest chief justices​—​John Jay, John Marshall, William Howard Taft, and Charles Evans Hughes​—​occupy places of honor in the Court’s two ceremonial conference rooms, Roberts said in 2007, “they all seem to be looking down at me with surprise.” And “as they are looking down upon me,” he added, “I am looking up to them.”

He explained in 2007 the lessons he draws from them. From Jay, the need for the Court to maintain the public’s confidence and respect. From Marshall, the importance of forging the justices’ own disparate voices into a truly institutional voice. From Taft, who is responsible for giving the Court a building of its own, the importance of establishing the Court’s independence. And from Hughes, the importance of preserving that independence against FDR’s court-packing plan.

In my article with Randy Barnett (also in the Weekly Standard), we hint at Roberts’s fetishization of John Marshall.

When such people become justices, defending the Court as an institution will trump defending the Constitution. They will look to John Marshall, not James Madison, for guidance. Justices take an oath not to the Supreme Court, but to the Constitution. We need jurists who are fearlessly committed to the rule of law, reputation be damned.

Building on the legacy of his boss, CJ Rehnquist, CJ Roberts sought to maintain the Court as an institution:

Roberts, following the example of Rehnquist and also Marshall, takes a similarly institutional view that he might not have taken as an associate justice. “The chief justice has a particular obligation to achieve consensus consistent with everyone’s individual oath to uphold the Constitution,” he told senators at his confirmation hearing, “and that would certainly be a priority for me if I were confirmed.”

But how far should the Chief go for compromise?

Taking this approach is not without costs of its own, of course. By reaching a “narrow” decision, the Court leaves the public uncertain about how small changes in facts might change the Court’s view of a constitutional issue. And deciding an issue narrowly in the first case leaves the door open for a subsequent Court, with new personnel, to effectively reverse a prior decision by drawing dubious distinctions.


Adam’s last point I think is an apt summary of the Chief’s modus operandi:

For his thoughtful focus on the deeper institutional questions surrounding the Court, the chief justice deserves (and, from conservatives, receives) great credit. But his skills as a legal craftsman ultimately allow him to increase the range of options before the Court in any given case, which in turn increases, not decreases, the Court’s role in American politics—the very opposite of what he hopes to achieve through judicial self-restraint. Thus he leaves many wondering what, exactly, his judicial methodology will ultimately produce.


Go read the entire article.


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Nov 14, 2015

Texas v. U.S. Part VI – The Dissent on Standing

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. This post focuses on how the dissent rejected standing.

Judge King explains that “special solicitude” from Mass. v. EPA is a “single, isolated phrase,” and the majority misreads the opinion.

It is altogether unclear whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in of itself, helps confer standing.

The dissent dismisses Arizona State Legislature, which cited “special solicitude.”

The notion of “special solicitude” was cited in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC), 135 S. Ct. 2652, 2664–65 n.10 (2015)—but as recognized by a treatise, in a footnote, in an opinion that did not concern federal–state suits. That footnote correctly observed that “[t]he cases on the standing of states to sue the federal government” are “hard to reconcile.” Id. (quoting R. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 263–66 (6th ed. 2009)).

Going to the statutory regime, Judge King focuses on the fact that in Mass v. EPA, there was statutory authorization for the suit:

But it did so based on Massachusetts’ quasi-sovereign interests and a provision of the Clean Air Act that specifically “recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Id. at 520 (citing 42 U.S.C. § 7607(b)(1)). The Court there recognized that this statutory “authorization [was] of critical importance to the standing inquiry.” Id. at 516. By contrast, neither the INA nor the APA specifically authorizes this suit.

In a footnote, the dissent responds to the majority’s argument that the APA does provide for authorization:

The majority suggests that the APA does provide specific authorization for suit here because it “authorizes challenges to ‘final agency action for which there is no other adequate remedy in a court.’” Majority Op. at 11 (citing 5 U.S.C. § 704). If this were the case, then presumably Massachusetts would have also referenced the APA as conferring a procedural right since the plaintiffs there challenged “final agency action” within the ambit of the APA. Massachusetts did not, however, even refer to the APA. And, as discussed below, it would be odd if the APA provided such an expansive procedural right to states.

This isn’t entirely responsive. That Massachusetts chose a specific provision (from the Clean Air Act) over a general one (the APA) doesn’t seem particularly noteworthy.

Second, granting standing here “raises serious separation of powers concerns,” citing (of all people) a 1993 article by John G. Roberts. (Justice Scalia’s argument about standing and the separation of powers would also have been appropriate):

The majority’s breathtaking expansion of state standing would inject the courts into far more federal–state disputes and review of the political branches than is now the case. While the majority claims that the factors giving a state “special solicitude” to sue the federal government will “seldom exist,” its holding suggests otherwise. Majority Op. at 28. If the APA provides the requisite procedural right to file suit—as the majority indicates, see id. at 11—and a state need only assert a “quasi-sovereign interest” to get “special solicitude,” then states can presumably challenge a wide array of federal regulatory actions. The majority dismisses such a possibility as a “parade of horribles” and “unfounded” based on the lack of such lawsuits at the moment.

Roberts wrote in his article:

By relaxing standing for state suits against the federal government, we risk transforming ourselves into “ombudsmen of the administrative bureaucracy, a role for which [we] are ill-suited both institutionally and as a matter of democratic theory.”

Third, the court charges that there is no limiting principle:

Third, and relatedly, the majority’s sweeping “special solicitude” analysis “has no principled limit.” Majority Op. at 26. Recognizing that fact, it “stress[es] that [its] decision is limited to these facts.” Id. at 16. Really? If that were true, there would be no need to assuage concerns regarding the opinion’s breadth by arguing “that there are other ways to cabin policy disagreements masquerading as legal claims.” Id. at 27. It is hard for me to see the bounds of the majority’s broad ruling.

I offered several limiting principles to the standing argument in this post.

Next, the dissent turns to whether the injury is fairly traceable to DAPA. For this, Judge King asserts that the injury is self-inflicted:

This injury results from two independent decisions made by Texas: (1) an alleged decision to underwrite the costs of issuing driver’s licenses to all applicants; and (2) a decision to allow deferred action recipients to apply for driver’s licenses. The majority claims, at length, that there is a “pressure to change state law,” Majority Op. at 13, because the DAPA Memorandum has the downstream effect of expanding the pool of potential Texas driver’s license applicants, thus increasing the costs Texas has made the choice to bear. This “pressure” is entirely manufactured by Plaintiffs for this case, and the majority and the district court have signed on. Nothing in the DAPA Memorandum suggests changes in state law. And I am skeptical that an incidental increase in state costs is sufficient to confer standing for the purposes of Article III.

If these injuries are sufficient for standing, Judge King writes, many more federal programs could be challenged:

Such a theory of standing—based on the indirect economic effects of agency action—could theoretically bestow upon states standing to challenge any number of federal programs as well (assuming states have the motivation to create the factual record to support those economic effects). I have serious misgivings about any theory of standing that appears to allow limitless state intrusion into exclusively federal matters—effectively enabling the states, through the courts, to second-guess federal policy decisions— especially when, as here, those decisions involve prosecutorial discretion.

I will discuss justiciability in a future post.

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Nov 14, 2015

Texas v. U.S. Part V – The Dissent on DAPA

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. This part begins to explore the dissent’s perspective on DAPA.

In Texas v. United States, I filed a brief on behalf of the Cato Institute and Jeremy Rabkin with Ilya Shapiro, Peter Margulies, and Leif Olson. The theme of our brief, simply stated, was “Don’t believe it.” Here is the first paragraph of our introduction:

The defense of DAPA requires a suspension of disbelief. As the government tells it, DAPA does nothing more than rejigger the Department of Homeland’s Security’s priorities to protect national security through humdrum exercises of prosecutorial discretion. Oh, and by the way, it incidentally creates a massive registration regime that offers work authorization to virtually all of the four million aliens that may apply. It’s all about conserving resources, the government insists, because it can’t deport everyone. There’s nothing to see here, the government claims, because Congress acquiesced to previous exercises of deferred action and sanctioned work authorizations for these aliens.

Don’t believe it.

Judge King’s dissent in Texas v. United States takes the exact opposite position–she believes all of it, however implausible.

First, Judge King notes that the policy will indeed be discretionary, and enforced on a case-by-case basis:

If the Memorandum is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand.

If DACA was any indication, this cannot be the case, as the government was not able to identify a single instance where an application was denied for discretionary reasons beyond the Secretary’s guidelines.

Second, Judge King asks, but how can we extrapolate from DACA to DAPA, which hasn’t even gone into effect?

Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.”

Because this is a preliminary injunction, some extrapolation is necessary. Secretary Jeh Johnson, in establishing DAPA, “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action.” A trial on the merits, after the injunction, would help establish a full enough record of how the policy would be implemented differently.

Third, Judge King writes that DAPA is a “quintessential exercise” of prosecutorial discretion:

Deferred action decisions, such as those contemplated by the DAPA Memorandum, are quintessential exercises of prosecutorial discretion.

Quintessential is defined as “representing the most perfect or typical example of a quality or class.” If indeed DAPA was “typical,” you would think the government could identify numerous examples of past practices of deferred action that are along the same lines. But they can’t. Each of the examples they cite served as a “bridge” between lawful statuses, or as ancillary to congressional reform. Nothing of this size or scope has ever been envisioned. I don’t think “quintessential” means what the dissent thinks it means. Even the OLC Opinion acknowledged that these sorts of policies varied from “ad-hoc grants of deferred action,” which are indeed quintessential:

We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.

Fourth, Judge King notes that this memo was written against the backdrop of limited resources:

It is important to recognize at the outset the backdrop upon which the Memorandum was written. As noted above, given the resource constraints faced by DHS, the agency is faced with important prioritization decisions as to which aliens should be the subject of removal proceedings.

There is another background, that is perhaps even more salient–the defeat of immigration reform in Congress. Within hours of learning that the bill was dead, the President announced that he would act alone: “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing…. [I will] fix as much of our immigration system as I can on my own, without Congress.” The policy was not announced till two weeks after the election, in a not-too-transparent effort to avoid political accountability for the decision.

Fifth, Judge King identifies “some direction” Congress gave to the Secretary of DHS:

Congress has given the Secretary some direction, in appropriations bills, as to how removal resources should be spent—by specifically devoting funding toward “identify[ing] aliens convicted of a crime who may be deportable, and . . . remov[ing] them from the United States once they are judged deportable,” and by making clear that the Secretary “shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Department of Homeland Security Appropriations Act, Pub. L. No. 114-4, 129 Stat 39, 43 (2015).

These are certainly “some” of the directions, but there are many other parts of the statute that are also salient. Specifically, that the specific category of aliens DAPA identifies are quite disfavored by the INA, which erects substantial burdens to their ability to apply for adjustment of status. (See my article in the Georgetown Law Journal Online for details). For example, parents of U.S. Citizens must wait up to 21-years, and leave the country for consular processing, before applying for an adjustment of status. Parents of Lawful Permanent Residents can never receive an adjustment of status based on their citizen-children. If King v. Burwell taught us anything, we must read statutes in context.

Sixth, Judge King writes DAPA does nothing more than divert resources from the lowest-priority aliens:

In an apparent effort to maximize the resources that can be devoted to such ends and consistent with his congressionally granted authority to set enforcement priorities, the Secretary contends that he has chosen—through the DACA and DAPA Memoranda—to divert some of DHS’s resources away from the lowest priority aliens to better enforce the immigration laws against the highest priority aliens.

This, in a nutshell is the framing of the issue I led this post off with. For reasons that orbit the constitutional valence of the case, scrutiny is indeed warranted. Don’t believe it. From our brief:

Instead of a modest application of prosecutorial discretion, DAPA is an unprecedented exercise of executive power in the face of congressional opposition. It conflicts with five decades of congressional policy as embodied in the Immigration and Naturalization Act (INA), and is inconsistent with previous exercises of deferred action. DAPA violates the President’s duty to take care that the laws are faithfully executed. As Justice Jackson recognized six decades ago, presidential lawmaking that lacks congressional support “must be scrutinized with caution.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring). Mirroring the Supreme Court’s precedents about reviewability for agency inaction, DAPA amounts to an “abdication” of the law with respect to its beneficiaries, and is an unconstitutional end-run around an uncooperative Congress. Allowing DAPA to proceed would set a dangerous precedent for the separation of powers and irreparably weaken both horizontal and vertical federalism.

I’ll have more on the dissent in a subsequent post.

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Nov 13, 2015

ImmigrationProf Blog Symposium on Texas v. United States

The ImmigrationProf Blog is holding a symposium on Texas v. United States. Take a look at three posts.

First, from Peter Margulies (my co-author of the Cato Amicus Brief):

Speaking of bridges, the Fifth Circuit deploys this metaphor to describe previous uses of deferred action. As Judge Smith observes on pp. 63-64 (see also Josh Blackman’s Georgetown on-line piece here) most previous uses of deferred action have been short-term bridges to a legal status that was already available to the noncitizen. Judge Smith aptly describes the Bush I Family Fairness program, which Mark Noferi has sought to re-brand as a precursor to DAPA, as an “interstitial” program that granted a reprieve from removal to spouses and minor children of IRCA grantees. Family Fairness recipients, as the spouses and children of individuals who would shortly receive lawful permanent resident status, were in line to receive visas within 3-5 years. In contrast, as Judge Smith recounts at p. 56 of his opinion (text adjoining n. 167), Congress has deliberately erected a daunting obstacle course for undocumented parents of post-entry U.S. citizen children, based on concerns articulated by Senator Robert Kennedy during the drafting of the 1965 Immigration Act.

Both Bobby Kennedy, who had just stepped down as Attorney General, and Senator Sam Ervin of North Carolina, who would later chair the Senate Watergate Committee, worried that undocumented persons might seek to have children in the U.S. to improve their own immigration prospects. The INA seeks to derail that strategy, by mandating that a U.S. citizen child sponsoring a parent must be at least 21 years of age and an undocumented parent must leave the country to obtain a visa. At that point, a parent who has already been unlawfully present in the U.S. for over a year (like virtually all prospective DAPA beneficiaries) is subject to a ten-year bar on admission to the United States. In other words, rather than the 3-5 years that a Family Fairness recipient had to wait for a legal status, a prospective DAPA recipient’s wait will often be at least twenty, and sometimes thirty, years. No short-term bridge can span that abyss, which Congress deliberately built into the legal landscape confronting DAPA recipients to deter the very conduct that DAPA rewards.

The Fifth Circuit was also right that DAPA is a “substantive rule” that requires notice and comment procedures. Congress required such procedures under the APA because it believed that input from a spectrum of stakeholders would improve regulatory outputs. That range of inputs can improve agency deliberation, focusing the agency’s attention on matters it may have unduly discounted or even ignored. A process that enhances immigration benefits such as work authorization for almost 40% of undocumented immigrants has the pervasive substantive impact that courts view as requiring rulemaking.

Second, from Stephen Legomsky:

A second observation is that, like the district court, the two judges in the Fifth Circuit majority conflated what should have been two separate, albeit related, issues. One issue is whether DHS has the authority to implement DAPA itself.  The other issues are whether, once deferred action is granted, DHS has the authority to deem the person lawfully present and/or the authority to grant work authorization.  The latter consequences flow from preexisting legal authority (statutory in the case of lawful presence, and statutory, regulatory, and judicial in the case of work permits) that the DAPA memo does not change in any way.  DAPA itself is simply a specific vehicle for prosecutorial discretion, which the court did not question.  So if the court felt that DAPA itself would be legal but for these other consequences, it should have approved the DAPA memo and only then proceeded to decide whether the Secretary had the authority to deem the recipients lawfully present and grant them work permits.  Each of these issues generates its own set of competing legal arguments and competing policy considerations.  By conflating them, the court abdicated its duty to explain why these preexisting authorities did not permit DHS to deem the recipients lawfully present and grant them permission to work.

A third observation, which follows from the preceding one, specifically concerns the concept of “lawful presence.” ‘This was a dominant theme in the majority opinion.  The majority repeatedly says or implies that there is no statutory authority for deeming millions of undocumented immigrants lawfully present.  I found it striking that the majority would rely so heavily on that assertion without even mentioning INA § 212(a)(9)(B)(ii), which at least on its face seems to provide precisely that authority.  This provision recognizes that the Attorney General (now the Secretary of Homeland Security) may authorize a period of stay for “an alien” (it does not limit this authority to particular subclasses of “aliens”), even when such periods of stay are not already authorized by the statute itself.  The same provision explicitly defines unlawful presence so as to exclude any such authorized periods.

Perhaps one can argue that this provision doesn’t mean what it says. If that’s what the Fifth Circuit thought, then it could and should have acknowledged this provision and explained why it fails to supply the necessary authority.  But the Fifth Circuit did not do even that.  Instead, like Judge Hanen, their preferred path was to ignore this provision entirely.  Since both the government and amici had cited section 212(a)(9)(B)(ii) in their briefs, and since the dissent cited it as well (the majority surely had the opportunity to read the dissenting opinion in draft before finalizing its opinion), this omission is inexplicable – unless the majority felt it could not persuasively explain this provision away and hoped no one would notice.

Finally, the Fifth Circuit majority approved Judge Hanen’s “finding” that, if DAPA were to be implemented, the DAPA adjudicators would defy the Secretary’s clear and repeated instructions to evaluate each case individually and to exercise discretion even when the threshold criteria are met. I would submit that this is not even a case in which the evidence to support that speculation was merely flimsy; it was nonexistent.

But most unnerving of all was the assumption that, if DACA adjudicators were rubber-stamping approvals (a premise for which, again, there was no evidence in any event), DAPA adjudicators will do the same. Since DAPA has not begun yet, that assumption is speculative.  Moreover it is speculation that is both unsupported by the evidence (keeping in mind, again, that Texas has the burden of proof) and irrational.  The court’s only asserted basis for this speculation was the Secretary’s statement that the DAPA process would be “similar” to the DACA process.  As Judge King pointed out, “similar” does not mean “identical.”  Since the substantive threshold criteria for DAPA bear little if any resemblance to those for DACA, the assumption that a high approval rate for DACA (whose beneficiaries were brought here as children) augurs a similar result for DAPA has no basis in the evidence.

Third, from Shoba Sivaprasad Wadhia:

While there is a possibility for the Supreme Court to hear the case in Texas, the political moves and legal mistakesuttered throughout this litigation cannot be ignored. Oral arguments on the merits of the injunction were held on July 10, 2015 and heard by a three-judge panel. In my commentary to this hearing, I expressed frustration about the flaws made by the plaintiffs during the oral arguments as it related to the definition of “deferred action” and the myth that the DAPA created new law. To the contrary, and as eloquently phrased by Judge King in her dissenting opinion, “Deferred action decisions, such as those contemplated in the DAPA Memorandum, are quintessential exercises of prosecutorial discretion.”


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Nov 12, 2015

D.D.C. Dismisses West Virginia’s Challenge to Obamacare Administration Fix

On October 30, D.D.C. dismissed West Virginia’s challenge to Obama administration’s delay of the individual mandate–known as the administrative fix. The court found that there was no standing. I wrote about the case last year here and here.

Here is a summary of the opinion:


H/T PLF’s Anastasia Boden

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