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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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The President Executive Overreach on Immigration Act and Youngstown Tier 3

December 4th, 2014

Today the House of Representatives passed the “President Executive Overreach on Immigration Act,” which is meant to stop DAPA. This bill has absolutely no chance of passing in the Senate, even after the Republicans take over, as the Democrats will filibuster it. It won’t even come up for a vote.

But, if you’ll indulge a thought experiment for a moment, imagine that this bill passes both Houses of Congress, and the President vetoes it. How would that work under Youngstown? To the extent the President is relying on some species of inherent power, we look to see whether he agrees, or disagrees with Congress. Generally, to understand the will of Congress, you look to what bills they pass, and are enacted into law. But here, the President would veto the very law that would limit his own power. Congress did everything within their power to make clear they did not agree with the President’s actions, and attempted to defund it. In response, the President vetoed it.

In my mind, this drops us from Youngstown Zone 2 to Zone 3. Congress opposes the President’s, in a way far more clear than what was at issue in Youngstown itself, where Congress spoke to a related issue a few years earlier. This is also much clearer than the congressional opposition in Dames & Moore v. Regan. The President can’t veto bills that constrain him, as a means to eliminate questions of doubt about whether Congress agrees, or disagrees.

If you follow me so far, let’s continue the thought experiment. Assume in the new Congress, the bill passes the House, and 54 members vote for cloture in the Senate (not enough). What does that mean for purposes of Youngstown? Are majority votes in both houses sufficient to express congressional opposition? After all, under the Constitution, you only need a majority. As the majority party is fond of reminding us, the filibuster does not appear in the Constitution.

Before you are quick to dismiss this assertion, please recall that President Obama made *just this argument* to justify DACA. He insists that the Dream Act had enough votes to pass the Senate, but was filibustered (it got 59 votes for cloture). He used this near-passage as a justification for that expansion of executive power.

If it’s good for the goose, it’s good for the gander. If the president can cite bipartisan support (based on a majority vote) without a bill in Congress for executive action, then the Court could cite bipartisan support (based on a majority vote) without a bill in Congress for Youngstown Zone 3.

Constitutional Law and Immigration Law

December 4th, 2014

In the run-up to NFIB v. Sebelius, health care lawyers suddenly had to become experts in constitutional law, and constitutional lawyers had to become experts in health care law. My sense (from personal experience) is that with rare exception, neither group fully succeeded. There is a similar dynamic now with the immigration executive action. Immigration lawyers are being asked to opine on the scope of the President’s duty to take care that the laws are faithfully executed, and constitutional lawyers are being asked to weigh in on the complicated immigration code. At this point, there is still quite a gap between the two.

 

WaPo Editorial Board: Obama Executive Action “Unprecedented”

December 4th, 2014

The Washington Post Editorial Board found that the President’s executive action on immigration is without precedent. Or, “unprecedented.”

THE WHITE House has defended President Obama’s unilateral decision to legalize the presence of nearly 4 million undocumented immigrants as consistent, even in scope, with the executive actions of previous presidents. In fact, it is increasingly clear that the sweeping magnitude of Mr. Obama’s order is unprecedented.

As I’ve noted before, it is simply false to cite to what President George H.W. Bush did as support for DAPA.

Central to the administration’s argument is its contention that the 4 million covered by the president’s order — some 36 percent of the estimated undocumented population of 11 million — is in line with the percentage covered by a comparable action by President George H.W. Bush in 1990. At that time, there were about 3.5 million illegal immigrants in the country; Mr. Obama, administration officials and their allies have said that about 1.5 million of them — the spouses and children of previously amnestied immigrants — benefited from Mr. Bush’s move.

In addition to the White House press secretary, Josh Earnest, and Mr. Obama himself, the Justice Department’s Office of Legal Counsel citedthe Bush executive action as precedent, using the figure of 1.5 million immigrants.

However, as The Post’s Glenn Kessler has scrupulously reported , there is every reason to believe that the estimate is wildly exaggerated and based mainly on what appears to have been a misunderstanding at the time.

When the measure was announced, Bush administration officials estimated the number who would be affected at around 100,000. While that was followed by some fuzziness and upward revisions, the actual number affected by the 1990 order was clearly a fraction — perhaps a couple of hundred thousand people, at most — of the 1.5 million that Obama administration officials have cited.
Even the apparent original source of the 1.5 million figure — Gene McNary, who led the Immigration and Naturalization Service at the time — told Mr. Kessler he believes the number is false and was based on a misunderstanding from testimony he gave to Congress. And no underlying data or methodology to justify the 1.5 million figure has been uncovered.

This is not a game of gotcha; facts matter — even in Washington — and so do the numbers. Under close scrutiny it is plain that the White House’s numbers are indefensible. It is similarly plain that the scale of Mr. Obama’s move goes far beyond anything his predecessors attempted.

The Post faults Republicans for not passing a bill, but throws the biggest blame at Obama.

A responsible Congress would have legislated a fix to the nation’s broken immigration system. It is outrageous that Republican leaders in the House refused to allow a vote on a bill that passed the Senate last year. That bill, backed by Democrats and some moderate Republicans, stood a good chance of passing the House and becoming law. Even now, Republicans’ refusal to enact a bill — and their use of Mr. Obama’s order as further pretext for obstinacy and paralysis — is an abdication of leadership and duty.

Republicans’ failure to address immigration also does not justify Mr. Obama’s massive unilateral act. Unlike Mr. Bush in 1990, whose much more modest order was in step with legislation recently and subsequently enacted by Congress, Mr. Obama’s move flies in the face of congressional intent — no matter how indefensible that intent looks.

I think I agree with just about every word in this editorial. Is it just me, or has there been something of a shift in the Washington Post since Jeff Bezos bought it. I mean, its subtle, but perceptible. In August, the Editorial Board wrote Gridlock “doesn’t grant the president license to tear up the Constitution.” Seriously.

IAEA is now DAPA

December 4th, 2014

When the President’s new immigration action was announced, I heard it referred to as IAEA – “Immigration Accountability Executive Action.” I thought that was a terrible name, as it reminded me of the International Atomic Energy Agency, which you may recall was led by Hans Blix, and tried to keep Saddam Hussein’s weapons program in check.

Now, it seems to be called DAPA – “Deferred Action for Parental Accountability.” This sounds much better, and seems similar to DACA.

DACA and DAPA. I can handle that. I hated saying IAEA.

Presidential Talking Points: I “took an action to change the law,” “If you like your plan you can keep your plan,” Obamacare is “Not A Tax”

December 3rd, 2014

In the lead-up to NFIB v. Sebelius, one statement that lived to haunt the President was his quip to George Stephanopoulos that Obamcare was “not a tax” It even came up during oral arguments before the Court, as the pinned Solicitor General tried to evade the question:

Justice Scalia was not persuaded that the penalty was a tax for any purposes. On the next day, he asked Verrilli directly, “The president said it wasn’t a tax, didn’t he? . . . Is it a tax or not a tax? The president didn’t think it was.” Verrilli, no doubt frustrated by this question, evaded it with some Washington-spin: the president, Verrilli noted, had said that the penalty “wasn’t a tax increase,” but he didn’t say it wasn’t a tax. A new tax must logically be a tax increase.

In response to the President’s moment of candor, the Solicitor General was only able to save the law by explaining that it actually was a tax.

After NFIB v. Sebelius was decided, and Obamacare actually went into effect, another one of the President’s oft-repeated statements haunted him big time–“If you like your plan, you can keep your plan.” This was always an abject lie, as Obamacare forced people to leave non-compliant plans, and in the months leading up to the rollout of HealthCare.gov, the Administration took steps to make it even harder to renew old plans. This whopper was voted the Politifact Lie of the Year.

In response to this lack of candor, the Obama Administration implemented the “administrative fix,” which waived the individual mandate’s penalty for millions, and grandfathered plans that were noncompliant under federal law.

I think we can now add a third to this list of Presidential talking points. With respect to his immigration executive action the President said quite clearly “I just took an action to change the law.” This was absolutely the truth. He did change the law–or more precisely, suspend it. Now, this statement was quoted several times by the Texas suit against the action.

I can already envision Justice Scalia snickering about this when the case gets to the Court. Poor Solicitor General Verrilli will have to explain what the meaning of change is.

For a former constitutional law professor, he really says things which hurt his case in court!