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Although DAPA, formerly known as IAEA, only offers a two-year reprieve from deportations, the President admitted what is obvious–once the immigrants receive some status, it will be politically impossible for any future president to remove them.

“It’s true a future administration might try to reverse some of our policies. But I’ll be honest with you — the American people basically have a good heart and want to treat people fairly and every survey shows that if, in fact, somebody has come out and subjected themselves to a background check, registered, paid their taxes, the American people support allowing them to stay. So any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Mr. Obama told a supportive crowd at a town hall meeting in Nashville. “It’s true, theoretically, a future administration could do something that I think would be very damaging. It’s not likely, politically, that they reverse everything we’ve done.”

This candor makes the President’s claim about the limited scope of the order even less plausible.

The Marshall Project reports on the death of Dollree Mapp, the eponymous defendant of the landmark decision in Mapp v. Ohio.

The woman behind the ruling, Dollree “Dolly” Mapp, died six weeks ago in a small town in Georgia, with virtually no notice paid. She was 91, as best we can tell.

Mapp’s life was as colorful and momentous as her death was quiet. She went from being a single teenage mother in Mississippi to associating with renowned boxers and racketeers in Cleveland to making her way in New York City, where she launched one business after another. “Some of them were legitimate, and some of them were whatever they were,” said her niece, Carolyn Mapp, who looked after her aunt in her final years. Along the way she tangled with police, and when she stood up to them in Cleveland – a black woman, staring down a phalanx of white officers in the 1950s – she made history.

The obituary has a detailed account of the search of Mapp’s home.

In May of that year, police were investigating a bombing at the house of Don King – a numbers racketeer who later became a famed boxing promoter – when they received a tip that a suspect might be hiding in Mapp’s home. Three officers showed up at Mapp’s place, demanding to be let in. Mapp refused. She called a lawyer, who advised her to relent only if police produced a warrant. Even then, the lawyer told her, she should make sure to read it. About three hours later, the police, now between 10 and 15 in number, pried a door to force their way in. A lieutenant, waving a piece of paper, said they had a warrant. Mapp asked to see it. The lieutenant told her no. So Mapp grabbed the paper from him and stuffed it down the front of her blouse. She would later testify to what happened next:

“What are we going to do now?” one of the officers asked.

“I’m going down after it,” a sergeant said.

“No, you are not,” Mapp told the sergeant.

But the sergeant “went down anyway,” grabbing the paper back and keeping Mapp from ever reading it. In years to come, she would say she suspected the paper was blank.

One of the most fascinating aspects of Mapp v. Ohio was that it was originally viewed as an obscenity prosecution, but the Court repositioned it as an exclusionary act case.

The police found the man they were looking for (although he was later cleared in the bombing). But the search didn’t end there. Led by the sergeant who had retrieved the dubious warrant – a man who would later say Mapp had “a swagger about her” – police searched every room, upstairs and down, rummaging through boxes and drawers. During this search they found a pencil sketch of a nude and four books considered obscene, with titles that included “Memoirs of a Hotel Man” and “Affairs of a Troubadour.” Mapp told police the materials belonged to a former roomer, for whom she had stored them. But she was charged under an Ohio law that made possession of obscene material a felony. At trial, Mapp testified that when an officer found the books, “I told him not to look at them, they might embarrass him.” The jury took 20 minutes to convict, after which Mapp was sentenced to up to seven years.

…

In their initial consideration of the case all nine justices agreed that the obscenity law violated the First Amendment. But when Associate Justice Tom C. Clark drafted the majority opinion, he shifted the focus of the case to the Fourth Amendment, which prohibits unreasonable search and seizure. By the time Mapp’s case reached the Supreme Court, it had become clear that the police never had obtained a warrant to search Mapp’s home.

Dollree Mapp at home in an undated photograph. COURTESY OF THE MAPP FAMILY

Dollree Mapp, left, in an undated photograph. COURTESY OF THE MAPP FAMILY

Mug shots of Dollree Mapp in 1957. CLEVELAND PRESS VIA CLEVELAND MEMORY PROJECT

Dollree Mapp outside her home in Cambria Heights, New York in 1971. COURTESY OF THE MAPP FAMILY

Update: The Times has this obituary, and manages to take a swipe at the Roberts Court:

The current chief justice, John G. Roberts Jr., was a lawyer in the Reagan administration in the 1980s and helped it attack the exclusionary rule through litigation, proposed legislation and other means. In 2009, he wrote the majority opinion in Herring v. United States, a 5-to-4 decision that upheld the conviction of Bennie D. Herring after a search led to his arrest on drug and weapons charges based on false information that he was the subject of a warrant.

Some of the rule’s supporters worry that it could be significantly weakened or abolished under the current court. Jeffrey Fisher, a professor at Stanford Law School, said the issue would most likely go before the high court again as Herring is interpreted by lower courts.

“Some are reading Herring broadly,” Mr. Fisher said, “and some narrowly.”

 

During his appearance on the Colbert Report, President Obama offered a candid, and chilling insight into his views on evolving executive power. In a bizarre way, he traces his progression from a candidate railing against Executive Power, to his 180-degree turn out of phase.

1:38 COLBERT: Speaking of trusting people with extraordinary power, I want to go back one second to 2008. Part of your campaign was believing that the president at the time had invested the Executive with too much power. Then you became president, and you seem to have a whole lot of power. Does that happen to every president, where you get into the office and you think “oh, you know what, I might be the only one I trust with this much power, so I’ll hold onto it.”?

2:10 POTUS: For the first time, you’re asking a sensible question. What is true – [laughter]. The structure of our democracy is checks and balances. And every president, even if on the outside they were complaining, there’s always the temptation to want to go ahead and get stuff done, and democracy is messy and its complicated.

The President says “democracy is messy and its complicated.” And he means that as a bad thing. I don’t know whether to laugh or cry or cite it in a brief (probably all of the above). Of course our democracy is “messy and complicated.” That’s how the separation of powers works. Gridlock is part of our constitutional order. All 9 justices in Noel Canning accepted that important point.

It gets worse. The President actually explains how he drifted from Candidate Obama in 2008, to Unitary Executive Obama in 2009 (if it even took that long).

So the tendency is to say “well, let me see if I can get this done,” just because things are so bottled up – especially in a moment where there’s a lot of gridlock.

There you have it. The President proves my theory that I’ve articulated for months. Gridlock gives him the legal justification to expand his legal authority. I have recently decided to turn my article, Gridlock and Executive Power into a two-part series. First, focusing on foreign affairs, and second on domestic affairs.

What comes next is even more fanciful–he cites the Office of Legal Counsel as a check!

What I’ve tried to do is to make sure that the Office of Legal Counsel, which weighs in on what we can-and-cannot do, is fiercely independent, they make decisions, we work well within the lines of that

Chutzpah! His legal team went through “60 iterations” of his immigration plan. Each time, the President told them to go farther, and utilize the “fullest extent” of his power. How can he even say this? With respect to Libya, he ignored his OLC and asked Harold Koh. It isn’t clear if DACA is even justified, as OLC never provided a written opinion. This is sophistry of the worst sort.

Next, the President repeated his standard refrain of “pass a bill.”

 But my preference would be to get a whole lot more done through Congress. Which is why, for example in the immigration legislation, what I said to them is “if you don’t agree with how we’re approaching this executive action, there’s an easy solution: pass a bill. If you pass a bill, then we’re going to be able to get things done.”

This view borders on extortion. If you don’t pass the bill I want, I’ll exceed my constitutional authority, and you can’t stop me, even if you defund me. In what surreality is this consistent with the rule of law? The President can’t simply skip over our “messy” and “complicated” democracy. It’s there for a reason.

Finally, he gives everything away.

And, you know what, too often what we have is a Congress that is stuck, and then the Executive and/or the courts end up filling the gaps. And I think that the more we can get Congress to actually work the way it’s supposed to, the less these problems come up.

When the Congress doesn’t act, the Executive fills in the gaps. This is not Chevron. Agencies do not receive deference when the President wants something Congress won’t give. There is no claim to deference when the President attempts to rewrite the law because Congress is gridlocked. This is not “gap filling” but “gap creation.”

Alas, in the end, the President acknowledges the courts play a role here. They do. With King v. Burwell, we have a rare opportunity to understand the divergence between the administrative process underlying Chevron, and the executive lawmaking of today. Stay tuned for more on this point.

For some time, I have wondered what will happen the day after King v. Burwell is decided. If the Court invalidates the subsidies, then 34 states without a state-run exchange will lose their subsidies. To figure out what this means politically, I broke down each state based on the party of its Senators.

Of those 34 states affected, and their 67 Senators (minus Angus King), 49 are Republicans and 18 are Democrats. In other words, once the mandate issues, the subsidies turn off, and insurers exit the market, people will start calling their Senators to complain. And the overwhelming majority of those receiving the complaints will be Republicans. This is 49 out of the entire caucus of 54.

I can’t see this ending well for the GOP, as they will be in the toughest spot.

Much of Jonathan Gruber’s testimony before Congress consisted of saying that absolutely none of his comments from years ago were accurate. On his comments about the tax subsidies he said:

Gruber: “I don’t think its a correct interpretation of the law or my statement. My statement was too poorly worded and much too glib.”

— Josh Blackman (@JoshMBlackman) December 9, 2014

He also said, in a response to Rep. Desjarlais, that he wasn’t certain about the subsidies, as the President in 2012 may not establish a federal exchange, thus leaving the states in a lurch.

Gruber on his subsidy comment: “I was being glib. I was concerned about federal exchange, and wouldn’t be sure who was president” in 2012

— Josh Blackman (@JoshMBlackman) December 9, 2014

This supports the challenger’s position in King.

But more importantly, he adamantly refused to tell the Committee how much the government paid him. But even more importantly, he *refused* to explain whether he had any conversations with anyone in the Obama Administration.

Gruber is refusing to answer about any conversations he had with Obama administration about Obamacare. Wow.

— Josh Blackman (@JoshMBlackman) December 9, 2014

It almost seemed like he was attempting to shield himself with executive privilege. Unreal.

The Committee said it will subpoena Gruber. Let’s see if DOJ intervenes to oppose the subpoena. That would make a remarkable battle over executive privilege.