Jan 26, 2016

Prop1 Class 4: The Capture Rule: Oil and Gas, Acquisition by Creation

Today we will finish the rule of capture, with a discussion on oil and gas, and other “fugitives.” Then, we move onto acquisiton by creation.

The lecture notes are here.

Oil & Gas

And, “I drink your milkshake.”

Here are some pics illustrating slant drilling. One of which may be from a cartoon.



You can learn more about the Manziel family and oil here.

International News Service v. Associated Press

The International News Service was owned by the famous publisher and Yellow Journalist William Randolph Hearst.


The majority opinion was written by Justice Mahlon Pitney. He was Christopher Reeve’s (Superman!) great-grandfather. He was a pretty non-noteworthy justice.


The author of the dissent, Justice Brandeis, was a big deal.


Cheney Brothers v. Doris Silk Corp

This opinion was authored by 2nd Circuit Judge Learned Hand, the greatest judge never to sit on the Supreme Court. Yes that was his name, Learned Hand. Actually his full name is Billings Learned Hand, but in college he started going by Learned. Learned’s cousin, Augustus, was also on the 2nd Circuit Court of Appeals.

Here is an awesome video of Hand signing.

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Jan 26, 2016

ConLaw Class 4 – The Legislative Powers

The lecture notes are here.

The Legislative Powers

  • Bicameralism & Presentment (260-261).
  • INS v. Chadha (261-272).
  • Clinton v. City of New York (272-281).
  • Read Article I, Section 8 of the Constitution (3-4).
  • Enumerated Powers in Article I, Section 8 (281-283).
  • Bills of Attainder (283-284).
  • Note 5 – Nixon v. GSA (293-294).
  • Ex Post Facto Clause (294-295).
  • Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.


This is Jagdish Chadha.

Jagdish Rai Chadha


Justice Louis Powell authored a concurring opinion.


Justice White dissented.


The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”


The majority opinion was authored by Justice John Paul Stevens.


Justice Anthony Michael Kennedy concurred.


Justice Stephen G. Breyer dissented, in part.


Justice Antonin Scalia dissented, in other parts.


Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.



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Jan 25, 2016

FantasySCOTUS Update: Four Cases Decided on 1/25/16

Today the Supreme Court decided four cases: Montgomery v. Louisiana (8th Amendment), Musacchio v. United States (Criminal Procedure), Menominee Tribe of Wis. v. United States (Civil Procedure), and FERC v. Electric Power Supply Assn. (Regulatory Law). The FantasySCOTUS crowd went 4-for-5, and the {Marshall}+ Algorithm went 5-for-5.


In Montgomery v. Alabama, both the crowd and algorithm predicted a reversal, but disagreed on the split.


Musacchio v. U.S. was a rare case that yielded a 9-0 affirm. The crowd nailed this. The algorithm got lucky by predicting a 5-4 affirm.



Menominee Indian Tribe of WI v. U.S. was another 9-0 affirm that the crowd got correctly. Interestingly, under the algorithm, the four votes to reverse were very weak (below 56%).


In FERC v. Elec. Pwr Supply Assoc., with Justice Alito recused, the vote split 6-2 to reverse. {Marshall}+ predicted a 8-0 reverse. FantasySCOTUS, interestingly, predicted a 4-4 affirm.



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Jan 25, 2016

Guest on “The What’s Up Radio Program” with Terry Lowry

Here is a two-part interview I did with Houston talk radio host Terry Lowry on the Supreme Court’s decision to grant U.S. v. Texas.

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Jan 25, 2016

Thomas: States Can Eliminate State Court Jurisdiction For “Claims Alleging that this Court’s Eighth Amendment decisions invalidated a sentence”

At the very end of Justice Thomas’s dissent in Montgomery v. Louisiana, Justice Thomas offers a workaround for states that do not want to allow their state courts to invalidate Juvenile LWOP sentences, even for murderers. There is a lot of going on here, so I will unpack it.

Unlike the rule the Court announces today, this limitation at least reflects a constitutional principle. Only when state courts have chosen to entertain a federal claim can the Supremacy Clause conceivably command a state court to apply federal law. As we explained last Term, private parties have no “constitutional . . . right to enforce federal laws against the States.” Armstrong, 575 U. S., at ___ (slip op., at 4). Instead, the Constitution leaves the initial choice to entertain federal claims up to state courts, which are “tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States.” Osborn v. Bank of United States, 9 Wheat. 738, 821 (1824).

States therefore have a modest path to lessen the bur- dens that today’s decision will inflict on their courts. States can stop entertaining claims alleging that this Court’s Eighth Amendment decisions invalidated a sen- tence, and leave federal habeas courts to shoulder the burden of adjudicating such claims in the first instance. Whatever the desirability of that choice, it is one the Constitution allows States to make.

The Court’s rule says that state courts hearing post-conviction relief are required to apply Miller retroactively. But what if a Court does not offer post-conviction relief for certain claims. In particular, the state legislature abolishes state-court jurisdiction for “claims alleging that this Court’s Eighth Amendment decisions invalidated a sentence.” If there is no state-court jurisdiction for such a claim, Thomas writes, then the federal courts would then be able to entertain those claims.

But what about the supremacy clause, you ask? Aren’t state courts required to hear federal causes of action? (See my earlier post on Montgomery and the supremacy clause). As I explain in my article, State Judicial Sovereignty, state courts can only be compelled to hear federal causes of action when the legislature vests with them with competent jurisdiction to do so. As Thomas suggests, if a state eliminates this form of post-conviction relief, then the state courts would not have to alter sentences. The federal courts can “shoulder the burden of adjudicating such claims in the first instance.”

Justice Thomas always such a sophisticated sense for federalism in counterintuitive ways. I will be sure to cite this dissent in my article, which should be out in the Illinois Law Review later this year.

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Jan 25, 2016

Does the Supremacy Clause “requires new substantive rules to have retroactive effect in cases on state collateral review”?

In Montgomery v. Louisiana, the Court holds that the Constitution compels state courts to retroactively apply the 2012 decision in Miller on post-conviction relief. The consequence of this decision is that state courts are going to have to provide the opportunity for parole for any juvenile sentenced to LWOP. How did the Court reach this conclusion? Justice Kennedy acknowledges that the previous precedents of the Court “do not directly control the question the Court now answers for the first time.” So what’s the answer? Apparently, the Supremacy Clause.

If a State may not constitutionally insist that a prisoner remain in jail on federal habeas review, it may not consti­tutionally insist on the same result in its own postconvic­tion proceedings. Under the Supremacy Clause of the Constitution, state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution. If a state collateral proceeding is open to a claim controlled by federal law, the state court “has a duty to grant the relief that federal law requires.” Yates, 484 U. S., at 218. Where state collateral review proceedings permit prisoners to challenge the lawfulness of their con­ finement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge.

Huh? This conclusory assertion effects a radical expansion of the meaning of the Supremacy Clause, without even the slightest analysis, or regard for what it portends in other areas of post-conviction law. Shame on the Chief Justice for joining this slippery conclusion, which will be cited for years to come in contexts unimaginable.

Scalia’s dissent destroys this ipse dixit.

The majority can marshal no case support for its con- trary position. It creates a constitutional rule where none had been before: “Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises” binding in both federal and state courts. Ante, at 8. “Best understood.” Because of what? Surely not because of its history and derivation.

Because of the Supremacy Clause, says the majority. Ante, at 12. But the Supremacy Clause cannot possibly answer the question before us here. It only elicits another question: What federal law is supreme? Old or new? …

How can it possibly be, then, that the Constitution requires a state court’s review of its own convictions to be governed by “new rules” rather than (what suffices when federal courts review state courts) “old rules”? …

The majority, however, divines from Siebold “a general principle” that “a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” Ante, at 11. That is utterly impossible. No “general principle” can rationally be derived from Siebold about constitutionally required remedies in state courts; indeed, the opinion does not even speak to constitutionally required remedies in federal courts.

Scalia rejects any notion that this result is constitutionally compelled.

The majority’s maxim that “state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution,” ante, at 12–13, begs the ques- tion rather than contributes to its solution. Until today, no federal court was constitutionally obliged to grant relief for the past violation of a newly announced substantive rule. . . .  maxim shown to be more relevant to this case, by the analysis that the majority omitted, is this: The Supremacy Clause does not impose upon state courts a constitutional obligation it fails to impose upon federal courts. 

Scalia also rejects that this result could be compelled by the Due Process Clause or the Equal Protection Clause:

All that remains to support the majority’s conclusion is that all-purpose Latin canon: ipse dixit. The majority opines that because a substantive rule eliminates a State’s power to proscribe certain conduct or impose a certain punishment, it has “the automatic consequence of invali- dating a defendant’s conviction or sentence.” Ante, at 9. What provision of the Constitution could conceivably produce such a result? The Due Process Clause? It surely cannot be a denial of due process for a court to pronounce a final judgment which, though fully in accord with federal constitutional law at the time, fails to anticipate a change to be made by this Court half a century into the future. The Equal Protection Clause? Both statutory and (in- creasingly) constitutional laws change. If it were a denial of equal protection to hold an earlier defendant to a law more stringent than what exists today, it would also be a denial of equal protection to hold a later defendant to a law more stringent than what existed 50 years ago. No principle of equal protection requires the criminal law of all ages to be the same.

To Scalia, the principle of “finality” demands that the opinion is wrong:

The majority grandly asserts that “[t]here is no grandfa- ther clause that permits States to enforce punishments the Constitution forbids.” Ante, at 12 (emphasis added). Of course the italicized phrase begs the question. There most certainly is a grandfather clause—one we have called finality—which says that the Constitution does not re- quire States to revise punishments that were lawful when they were imposed. Once a conviction has become final, whether new rules or old ones will be applied to revisit the conviction is a matter entirely within the State’s control; the Constitution has nothing to say about that choice.

Justice Thomas’s dissent also rejects this perverse reliance on the Supremacy Clause:

No provision of the Constitution supports the Court’s holding. The Court invokes only the Supremacy Clause, asserting that the Clause deprives state and federal post- conviction courts alike of power to leave an unconstitu- tional sentence in place. Ante, at 12–13. But that leaves the question of what provision of the Constitution supplies that underlying prohibition.

The Supremacy Clause does not do so. That Clause merely supplies a rule of decision: If a federal constitu- tional right exists, that right supersedes any contrary provisions of state law. See Art. VI, cl. 2 (“This Constitu- tion, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). Accordingly, as we reaffirmed just last Term, the Supremacy Clause is no independent font of substantive rights. Armstrong v. Exceptional Child Center, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3).

The Supremacy clause is not a independent source of substantive rights.

It’s bad enough the Court’s outcome-determinative jurisprudence has adulterated the 8th Amendment beyond any conceivable neutral principle of law. Now, it has infected the Supremacy Clause. (At least today’s per curiam decision did not purport to rely on the Supremacy Clause).


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Jan 25, 2016

Scalia on Kennedy Ruling Juvenile LWOP is Unconstitutional Without So Decreeing: “Mission accomplished.”

I freely admit that I find the 8th Amendment uninteresting. At least five Justices have made up their mind that the death penalty needs to be eliminated, but because they don’t want to do it all at once, they are systematically, step-by-step, making it harder and harder to execute someone. We all know where this one is going. Justice Scalia’s dissent in Montgomery v. Louisiana makes this process really, really personal.

In short, the Court rules that the Constitution requires that Miller–invalidating Juvenile LWOP in certain circumstances–must be applied retroactively for post-conviction relief of a murder conviction. (I will come back later to the discussion between Scalia and Kennedy on the constitutional issue.

Using language that harkens to his Obergefell dissent, Scalia specifically refers to the five Justices in the majority (In Obergefell he demoted them to “lawyers.”)

So for the five decades Montgomery has spent in prison, not one of this Court’s precedents called into question the legality of his sen- tence—until the People’s “standards of decency,” as per- ceived by five Justices, “evolved” yet again in Miller.

The final paragraph of Scalia’s dissent targets Kennedy, directly, for the sophistry I laid out at the beginning of the post.

This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment.

Further, Roper’s decision invalidating the death penalty for juvenile offenders was premised on the availability of life without parole.

After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life with-out parole was a severe enough punishment. See Roper, 543 U. S., at 572.

The same person–let’s call him Tony–wrote Roper, Miller, and now Montgomery.

How could the majority—in an opinion written by the very author of Roper—now say that punishment is also unconstitutional? The Court expressly refused to say so in Miller. 567 U. S., at ___ (slip op., at 17).

Here was AMK’s explanation in Miller three years ago about why it would not impose a “categorical” bar:

By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not con- sider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.

Scalia continues:

So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility.

That is the M.O. of death penalty abolitionists. Make it constitutional, but a “practical impossibility.” Scalia, channeling his Italian heritage, ends with a bang.

And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.” Ante, at 21. Mission accomplished.

Let’s hope Justice Kennedy has EZ-Pass in case he ever travels on the New Jersey Turnpike.

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Jan 25, 2016

White House Wants Employers To Penalize Employees Who Don’t Participate in Wellness Programs. EEOC Doesn’t.

On of the planks of the Affordable Care Act’s efforts to control health costs is to allow employers to penalize employees who do not participate in certain wellness programs. What is the penalty? Higher premiums:

Workers increasingly are being told by their companies to undergo health screenings and enroll in wellness programs, as a way to curb insurance costs. Many employees now face stiff financial penalties — often in the form of higher premiums — if they do not have their cholesterol checked or join programs to lose weight or better manage diabetes.

The penalty can be as high as 30% of the cost of the premium.

Under the Affordable Care Act, businesses can use financial incentives of up to 30 percent of the yearly cost of coverage, which could easily amount to several thousand dollars. While few employers have incentives of that size, about one in 20 large employers offering screenings has incentives of at least $1,000, according to the Kaiser survey. A smaller fraction require screening before an employee can enroll in coverage. Over all, the amounts for not participating have been increasing, said Karen Pollitz, a senior fellow at Kaiser.

The E.E.O.C.’s challenges have given employers pause as they try to square the Americans With Disabilities Act with the Affordable Care Act and other laws. “It’s becoming more and more difficult even for the lawyers to keep up with the patchwork regulatory approach to these rules,” said Edward Fensholt, a lawyer who heads compliance services for Lockton Companies, an insurance broker based in Kansas City, Mo.

The EEOC has challenged this in court, as a violation of the ADA. A federal judge in Wisconsin rejected this claim. The Times reports this has created a fissure between EEOC and the White House:

While most large employers offer wellness programs, companies and workers alike may find the rules difficult to navigate. The Affordable Care Act allows employers to impose hefty penalties on individuals who do not participate. Nearly half of the large employers offering screenings and wellness programs use some sort of financial incentive to persuade employees to comply, according to a recent analysis by the Kaiser Family Foundation.

But the E.E.O.C. seems to have adopted a different standard, and its proposed regulations do not mesh neatly with the health law. The agency appears to be facing pressure from the White House and Republicans to make sure it does not derail corporate efforts to rein in health care costs.

Nick Bagley has more here.

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Jan 25, 2016

Does #SCOTUS have authority to “limit the discretion of state courts where such limitation is not contained in the statute”?

42 U.S.C. s. 1988 provides has discretion to “allow the prevailing party, other than the United States, a reason- able attorney’s fee” in a civil rights lawsuit filed under 42 U. S. C. §1983. In Hughes v. Rowe, the Court interpreted that provision such that a prevailing defendant can recover fees only if “the plaintiff ’s action was frivolous, unreasonable, or without foundation.”

In May, the Idaho Supreme Court considered a 1983 suit, and rejected the Plaintiffs argument that “attorney fees cannot be awarded under this statute unless the action was frivolous, unreasonable, or without foundation at the time the complaint was filed.” The Idaho Supreme Court concluded that it was not bound by Hughes because the “frivolous” limitation was not in the statute, but was added by SCOTUS as a gloss.

The statute does not contain any such limitation. It permits the award of attorney fees to the prevailing party in the discretion of the court. In Hughes v. Rowe, 449 U.S. 5 (1980), the Supreme Court held that attorney fees could not be awarded to a prevailing defendant in a case brought pursuant to 42 U.S.C. section 1983 unless the plaintiff’s action was frivolous, unreasonable, or without foundation. Id. at 14. However, Hughes and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), upon which it was based, were appeals from cases in federal district courts. Although the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute. Therefore, in cases filed in the Idaho state courts seeking to recover under 42 U.S.C. section 1988, the court has discretion in deciding to award attorney fees to the prevailing party, whether the prevailing party is the plaintiff or the defendant.

The plaintiff filed a cert petition in October. According to the Brief in Opposition, the “The Idaho Supreme Court went on to state sua sponte” this conclusion. The BIO confessed error on this point:

If the sole question presented on the petition for a writ of certiorari is, as framed by Petitioner, “whether the Idaho Supreme Court correctly concluded that Hughes and Christiansburg do not bind state courts because this Court ‘does not have authority to limit the discretion of state courts where such limitation is not contained in the stat- ute,’ ” the inquiry can end here and summary disposi- tion may be appropriate. Respondents are unable to locate any authority or case law to support that assertion of the Idaho Supreme Court. 

Today, the Court GVR’d the case in a terse, but tense two-page decision that relies on Martin v. Hunter’s Lessee. You don’t see that every day! Here is the key analysis:

Section 1988 is a federal statute. “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” Nitro-Lift Technologies, L. L. C. v. Howard, 568 U. S. ___, ___ (2012) (per curiam) (slip op., at 5) (quoting Rivers v. Roadway Express, Inc., 511 U. S. 298, 312 (1994) (internal quotation marks omitted)). And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, “the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mis- chiefs that would attend such a state of things would be truly deplorable.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816).

The Idaho Supreme Court, like any other state or fed- eral court, is bound by this Court’s interpretation of federal law. The state court erred in concluding otherwise. The judgment of the Idaho Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

The Supreme Court of Idaho is bound by the Supreme Court of the United States because the Supreme Court of the United State says so. Note that although the Cert Petition leads off with the Supremacy Clause, the Per Curiam decision wisely doesn’t even mention it. Why? Because the Supreme Clause says nothing about the Supreme Court (as I spent 5 minutes drilling into my students last week). It provides.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

It does not say that the Supreme Court is the final expositor of the supreme law of the land. That is a role the Court has assumed for itself. State and federal Judges are bound to the Constitution, not to the Supreme Court. Those aren’t the same thing.

It is a common mistake to conflate the day. For example Justice Breyer erred last month when he wrote that lower courts are bound by SCOTUS because of the supremacy clause. The author of today’s Per Curiam opinion–I am going to guess the Chief assigned this institutional decision to himself–did not make such a foundational mistake.

And by the way, it wasn’t Marbury v. Madison that established this principle of SCOTUS supremacy. Nor was it Martin v. Hunter’s Lessee, although it can be inferred from that case. It was Cooper v. Aaron that first announced this principle. Note that Cooper v. Aaaron didn’t even cite Martin, for good reason–it didn’t provide the rule of decision.

Update: Howard Wasserman writes that the Court may have been sending a signal to the Supreme Court of Alabama:

Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.

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Jan 25, 2016

Final Version of Essay in Washburn Law Journal: “Immigration Inside the Law”

The Washburn Law Journal held a symposium on Professor Hiroshi Motomura’s lecture on immigration law. The title of Hiroshi’s book, Immigration Outside The Law, served as a fitting point for my response, Immigration Inside The Law. The first sentence of the essay explains the general lessons I’ve gleaned over the last year. “To many scholars, paradoxically, practical immigration law has little to do with actual immigration law.”

One of the points I develop, is that however extreme the 2014 OLC Opinion justifying DAPA was, it was moderate in comparison to the views of the Professoriate, who believed the President had the power to also grant deferred actions to the parents of the Dreamers. This was a bridge too far even for the Obama Administration–a point Charlie Savage makes eloquently in his book.

In my essay, I discuss how four law professors in particular urged the Obama Administration even further–this letter was not released to the public, but was leaked to NBC News.

Not cited in the lecture is a November 3, 2014 letter Motomura sent to President Obama, which was also signed by fellow law professors Shoba Sivaprasad Wadhia, Stephen Legomsky, and Michael Olivas.18 Consistent with his prior writings, he explicitly endorsed statutory and constitutional rationales that Congress practically does not matter.

The professors wrote to the President that “there is no legal requirement that the executive branch limit deferred action or any other exercise of prosecutorial discretion to individuals whose dependents are lawfully present in the United States.”19 It makes no difference that, in the words of OLC, Congress had expressed a concern in the INA for “uniting the immediate families of individuals who have permanent legal ties to the United States.”20 Under the professors’ views, it was irrelevant if the individual had immediate family members—let alone dependents—who were citizens of LPRs. This was a bridge too far for the Obama Administration: “[e]xtending deferred action to the parents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies.”21

The professors explained quite candidly that “any other criteria for deferred action or other exercises of prosecutorial discretion—are policy choices, not legal constraints.”22

However, the Obama Administration openly rebutted this professorial proffer, even over the objection of a law professor who was working within USCIS.

The decision to publish the OLC Opinion, rather than limit it to “oral” advice—as was the case with the 2012 DAPA decision—was critical in rebutting the professor’s positions. In POWER WARS, Charlie Savage reports that White House Counsel Neil “Eggleston argued that showing that [OLC Chief Karl] Thompson had said some steps they had considered would not be lawful would show that they had really thought about it and obeyed legal limits.”29 Lucas Guttentag, who was on leave from Stanford Law School as Senior Counsel to U.S. Citizen and Immigration Services,30 reportedly argued against memorializing this memo, “saying it would preclude the executive branch from having the option of choosing to help [the parents of DACA beneficiaries] in the future.”31 Guttentag, in line with Motomura and others, “believed that [OLC] had drawn the line too narrowly by focusing unduly on whether someone had a child who is an American citizen, to the exclusion of other grounds in the law that an immigrant could use to gain legal status.”32 But the White House rejected this scholarly consensus. As Savage recounts, Eggleston said “[t]his is the high-water mark. There is never going to be anything more after this.”33 By putting the opinion into writing, the Obama Administration was setting in stone limits on the scope of immigration enforcement, based on the laws of Congress, that repudiated the capacious understandings advanced by the professoriate. This approach fits in with the modus operandi of the Obama Presidency with respect to executive power— rather than defining a broad conception of Article II, the Administration’s lawyers determined that a specific exercise of executive power is appropriate under “certain circumstances,” implicitly suggesting that it would not be appropriate in all other circumstances.34

As Charlie Savage has explained, there were a number of things the Obama White House didn’t do, citing legal constraints. Not expanding deferred action to the parents of the Dreamers was a significant decision. (I still think the rest of DAPA is unconstitutional, but that is a different story).

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Jan 24, 2016

Audio: On the “Mike Slater Show” to discuss U.S. v. Texas

On Friday, I was a guest on the Mike Slater Show on AM 760 KFMB in San Diego to discuss the Supreme Court’s grant in U.S. v. Texas. I was on for the first 30 minutes of the program.

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Jan 24, 2016

Appearance on Fox News Channel to Discuss U.S. v. Texas

On Saturday I appeared on the Fox News Channel to discuss the Court’s consideration of U.S. v. Texas. I also got a question about FantasySCOTUS, which was a treat.














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Jan 22, 2016

Fox News Channel Saturday at 2:20 To Talk About Immigration

Unless I got bumped (which happened last week with Iran), I should be on the Fox News Channel on Saturday at 2:20 ET to discuss the Supreme Court’s grant in U.S. v. Texas.

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Jan 22, 2016

Only One Candidate Responded to Charlie Savage’s 2016 Executive Power Survey

As he did in 2007 and 2011, New York Times reporter Charlie Savage sent an executive power survey to each of the Presidential campaigns. In 2007, 9 out of 12 campaigns replied, including McCain and Obama. In 2011, 5 out of 7 campaigns replied, including Romney. In 2015, out of 10 campaigns, only one responded: Rand Paul. I will let you draw your own inferences from Savage’s observation about why the rest did not reply, but I will say that I am proud that Sen. Paul did reply. Also, as noted in Paul’s response, I am on the Rand Paul Law Professor Advisory Committee, and contributed to the positions taken, though I stress that I do not personally share all of the views in the survey.

Sen. Paul’s answer for why he submitted the survey speaks for itself:

Over the last decade we have seen the power of the President increase dramatically by Congress’s unconstitutional delegation of power to the executive branch and by unconstitutional claims of authority by the President. Because our Founders recognized that unbridled power can corrupt anyone, they enshrined a system of government separated powers among three co-equal branches and between the federal government and the states, thereby preventing too much power being held in the hands of the few. Because we have strayed far from their design, we are today witness- ing the corruption and abuses they sought to avoid.

When the President and executive branch officials employ the discretion that has too often been given to them by Congress – or claim powers that exceed even this vast delegation — we have moved away from the rule of law and into a government of unrestrained regulation proffered by the unelected elite. If we are to have a truly free, equal, and just society, we must restore the balance of power in Washington.

I am willing to answer these questions because I seek to restore our constitutional system of separation of powers, which allows the American people to decide how they are to be governed and creates a diverse and free nation that empowers individuals to make the most out of their lives as they see fit.

In particular, I’d like to highlight Sen. Paul’s statement on prosecutorial discretion (the first question Savage asked).

All of the President’s authority, including over prosecutorial discretion, can derive only from acts of Congress, or from the Constitution itself. When Congress does not appropriate enough funding for the President to strictly enforce every law, this constitutes a delegation of power to the President to set enforcement priorities. However, the Constitution imposes a duty on the President to “take care that the laws be faithfully executed.” The Take Care Clause imposes on the President a requirement to act in good faith. To use the discretion granted by Congress for the purpose of undercutting the laws enacted by Congress is to act in bad faith. For this reason, the President cannot systematically exclude an entire class of people from enforcement or—as President Obama has repeatedly done—turn individualized discretion into a rubber stamp, effectively exempting millions from the rule of law. These faux-priorities are designed to bypass Congress and such a motive for exercising presidential discretion constitutes bad faith. Moreover, publicly announcing a policy of non-enforcement provides undermines Congress. When Congress enacts a law given limited enforcement resources, it expects that the deterrent threat of prosecution—however unlikely—will compel compliance with the law. For these reasons inaction with the purpose of bypassing Congress and undermining its enactments constitutes an abdication of the Chief Executive’s statutory responsibilities, a breach of the separation of powers, and a violation of the President’s duty under the Take Case Clause.

I hope the next President adopts a similar position.

In a campaign that has been a wild ride, I am proud of my colleagues who worked with the campaign to submit this letter for the public.

Update: Savage told me that he also sent it a total of 16 campaigns–6 of which were not mentioned in the article–including Walker, Graham, Huckabee, Santorum, Fiorina and Webb.

Update 2: Eric Posner writes that no one really cares about limits on presidential power, unless the President is of a different party:

The major presidential candidates refused to answer Savage’s survey of their views about executive power. Why not? They did in 2011 and 2007. The survey was designed from the beginning to force candidates to acknowledge limits on their power if elected. Savage, like most commentators, has persuaded himself that Americans think that presidents have too much power. He made his name by documenting Bush-era executive-power abuses, and he has just published a book about Obama’s abuses as well. But it seems to be dawning on him that Americans want limits on executive power only when they don’t like the president in office. Today, Republicans complain about presidential power; eight years ago, Democrats complained. The opposition is tactical, skin-deep, which is why serious limitations on executive power—either self-imposed in response to public opinion, or imposed by the other branches—will not take place anytime soon. Americans want a strong president to solve their problems, and the candidates know this.

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Jan 22, 2016

Clinton: “l’ll appoint Supreme Court justices who recognize that Citizens United is bad for America”

In a CNN op-ed, Hillary Clinton has once again reiterated her Citizens United litmus test for appointing a Justice to the Supreme Court.

That starts with reversing Citizens United. And that’s where my comprehensive plan to restore common sense to campaign finance begins. As president, I’ll appoint Supreme Court justices who recognize that Citizens United is bad for America. And if necessary, I’ll fight for a constitutional amendment that overturns it.

Her first option is to appoint a Justice who will reverse it. That will take 51 votes in the Senate. (Don’t pretend for a second she will keep the filibuster in place). Option two is to  persuade 2/3 of both Houses of Congress, and 3/4 of the states to ratify an amendment. I think Option 1 is easier. Really, if you can’t persuade 51 Senators, an amendment is a nonstarter. Although, it would be a first for a President to overturn a constitutional decision that went against her.

I will eventually write something about the insanity of Sanders and Clinton openly imposing litmus tests on Justices. After decades of ranting about Roe v. Wade litmus tests, we have devolved to this. The current state of American politics is bewildering on all fronts.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I advise the Rand Paul campaign.

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Jan 22, 2016

Donald Trump Tweets about Eminent Domain, Natural Born Citizens, and the Naturalization Act of 1790

Just another day in the race for the White House.

Disclosure: I advise the Rand Paul campaign.

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Jan 22, 2016

Video: David Bernstein at the South Texas Federalist Society – Lawless

On Jan. 21, David Bernstein (who was my ConLaw professor) spoke at the South Texas Federalist Society Chapter about his new book, Lawless. We had a packed house with nearly 100 students. Here is the video:

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Jan 22, 2016

Clinton: “It was called Hillarycare before it was called Obamacare”

In November 2013, after the release of Unprecedented, and while HealthCare.gov was imploding, I wrote a piece for The Daily Caller titled Obamacare is HillaryCare 2.0. I thought I was being a bit edgy, linking Hillary Clinton with Obamacare, as the Clintons tried to distances themselves from the debacle. I wrote:

As 2016 draws near, the Clintons are already distancing themselves from the Obamacare rollout debacle. Recently, President Clinton faulted President Obama for misleading Americans, urging the 44th President to “honor the commitment the federal government made to those people and let them keep what they got.” Beyond the palpable chutzpah of President Clinton attacking Obama for misleading the public and not keeping promises, Bill Clinton’s criticism about the failures of the individual mandate should also be directed at his own wife. …

Hillary Clinton cannot run away from the. Obama’s plan is her plan. All of the distortions to the healthcare market wrought by Obamacare and the individual mandate were her ideas first. In a 2016 presidential run, Clinton will once again have to defend her failed health care policy.

Turns out I was way ahead of the curve.

In Iowa, Sec. Hillary Clinton agreed:

“It was called Hillarycare before it was called Obamacare,” Clinton told a crowd of supporters at a country club in Vinton, Iowa. “I don’t want to start over.”

Clinton is mostly correct. To be fair, President Obama stole Senator Clinton’s health care plan during the 2008 campaign (what I dubbed HillaryCare 2.0), and not the Health Security Act from 1993 (HillaryCare 1.0). As I noted in the piece:

In 2009, President Obama adopted Senator Clinton’s plan almost in its entirety. Obamacare is Hillarycare 2.0. All of the harmful consequences of Obama’s individual mandate — people losing their policies, higher premiums, and increased tax burdens — were the foreseeable consequences of Clinton’s plan. Any criticisms of Obamacare can be aimed equally at Hillary Clinton. …

After the election, Obama formally adopted Clinton’s plan, almost in its entirety, even though he had recognized the major flaws of her policy. Politifact awarded Obama’s change of course with the ignominious “Full Flop!” award. …

In any event, with quotes like this, the chapters for Unraveled write themselves. Now all I need is for Donald Trump to say he will unravel Obamacare.

Disclosure: I advise the Rand Paul campaign.

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Jan 21, 2016

Bernie Sanders Tweets Citizens United #SCOTUS Litmus Test

On the sixth anniversary, Sen. Bernie Sanders offered this twitter rant, and promised “Any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions.”


I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton, and Bernie Sanders (here and here).

Disclosure: I advise the Rand Paul campaign.

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Jan 21, 2016

George Will on cert grant in U.S. v. Texas

George Will’s column explores the significance of the Court’s cert grant in U.S. v. Texas, with a quote from me:

During Watergate, Henry Kissinger’s mordant wit leavened the unpleasantness: “The illegal we do immediately; the unconstitutional takes a little longer.” President Obama often does both simultaneously, using executive authoritarianism to evade the Constitution’s separation of powers and rewrite existing laws.

Last week, however, the Supreme Court took a perhaps momentous step toward correcting some of the constitutional vandalism that will be Obama’s most significant legacy. The court agreed to rule on Obama’s unilateral revision of immigration law.

The court has asked to be briefed on a matter the administration must be reluctant to address; the Justice Department requested that the court not insert a “constitutional question” into the case. The question the court will consider is: Did Obama’s action violate the Take Care Clause?

Obama has sworn to “preserve, protect and defend the Constitution,” which says the president shall “take care that the laws be faithfully executed.” Josh Blackman of the South Texas College of Law in Houston and adjunct scholar at the Cato Institute in Washington says that only three times has the court relied on the Take Care Clause to limit executive actions, and the justices have never asked for a briefing on this clause.

To read further, see my article in National Review.

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