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The complaint was filed today in the Southern District of Texas, Brownsville. It was filed by the Attorneys General of Texas, Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia, along with the Governors of Mississippi, Maine, North Carolina, and Idaho.

The complaint alleges that the new class of undocumented immigrants will harm the states:

61. The DHS Directive will substantially increase the number of undocumented immigrants in the Plaintiff States. At the most basic level, the Directive is a promise to openly tolerate entire classes of undocumented immigrants. In addition, the Directive offers affirmative legal inducements to stay, such as work authorization and the tolling of unlawful presence. White House officials also have stated that the beneficiaries of deferred action are eligible for Social Security and Medicare. The removal of the deportation threat, combined with the incentives to stay, will make remaining in the United States far more attractive for the affected classes of undocumented immigrants.

Moreover, this will “trigger a new wave” of immigrants, and increase human trafficking:

62. Moreover, the DHS Directive is certain to trigger a new wave of undocumented immigration. As explained above, DACA led directly to a flood of immigration across the Texas-Mexico border and a “humanitarian crisis” in Texas. The federal government itself recognized that its lax attitude toward the immigration laws caused this wave. See Vitiello Memorandum. The DHS Directive is a much larger step than DACA, and it will trigger a larger response.63. The DHS Directive will increase human trafficking in the Plaintiff States. Such trafficking is largely controlled by the Mexican drug cartels, which are the most significant organized crime threat to the State of Texas. See Texas Department of Public Safety, Texas Public Safety Threat Overview at 2, 23 (Feb. 2013). By boosting undocumented immigration, the DHS Directive will bolster the business of the cartels and greatly exacerbate the risks and dangers imposed on Plaintiffs by organized crime. See Nava-Martinez Order at 6 (explaining that human trafficking “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico”). Plaintiffs by organized crime. See Nava-Martinez Order at 6 (explaining that human trafficking “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico”).

Texas will be forced to spend money to deal with the immigrants.

64. The Plaintiff States will be forced to expend substantial resources on law enforcement, healthcare, and education. Some of these expenditures are required or coerced by federal law. For instance, the Supreme Court has held that States are constitutionally obligated to provide free education to children of undocumented immigrants. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, both Medicare and Medicaid require provision of emergency services, regardless of documented immigration status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.225.

65. Other expenditures are required by state law. For example, Texas law requires local governments to provide healthcare for the indigent. See Indigent Health Care and Treatment Act, TEX. HEALTH & SAFETY CODE §§ 61.001 et seq. In FY2014, Texas counties reported over $23 million in indigent health care expenditures. Texas law also requires nonprofit hospitals to provide unreimbursed care for the indigent as a condition of maintaining their nonprofit status. See TEX. HEALTH & SAFETY CODE § 311.043.

And to provide work authorization:

66. Other costs follow specifically from the extension of deferred action status. For instance, federal work authorization functions as a precondition for certain professional licenses in the Plaintiff States. See, e.g., 16 TEX. ADMIN. CODE §33.10 (requiring applicants for an alcoholic beverage license to be “legally authorized to work in the United States”); 37 TEX. ADMIN. CODE § 35.21 (requiring employees of private security companies to submit application, including a copy of a current work authorization card); TEX. RULES GOVERN. BAR ADM’N, R. II(a)(5)(d) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).

67. Texas and other Plaintiff States also rely on Defendants’ evidence of lawful presence for certain benefits under their respective state laws. See, e.g., TEX. LAB. CODE § 207.043(a)(2) (extending unemployment benefits to individuals who were “lawfully present for purposes of performing the services”); TEX. FAM. CODE § 2.005(b)(4) (allowing an “Employment Authorization Card” to be used as proof of identity for the purposes of a marriage license application).

68. By authorizing a large class of undocumented immigrants to work in the United States, the DHS Directive will expose Texas to the cost of processing and issuing additional licenses and benefits. Moreover, it will cause Texas to issue such licenses and benefits to individuals who are not legally authorized to be in the country (or to take on the burdensome task of attempting to figure out which undocumented immigrants have bona fide deferred action status and which ones benefited from the unlawful DHS Directive).

 Citing Massachusetts v. EPA and Arizona v. United States the complaint concludes that litigation is the only avenue for relief:

69. If the Plaintiff States had the sovereign power to redress these problems, they would. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). But the Supreme Court has held that authority over immigration is largely lodgedin the federal government. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012). Accordingly, litigation against the federal government is the only way for the States to vindicate their interests and those of their citizens.

Count 1 asserts a violation of the Take Care Clause:

Violation Of The Take Care Clause, Art. II, § 3, Cl. 5

70. The allegations in paragraphs 1-69 are reincorporated herein.

71. The DHS Directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3, cl. 5.

72. The Supreme Court has made clear that the Take Care Clause is judicially enforceable against presidential invocations of the dispensing power. See, e.g., Kendall v. United States, 37 U.S. (12 Pet.) 524, 612-13 (1838); Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945).

73. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws — not rewrite them under the guise of executive “discretion.”

74. In this case, the President admitted that he “took an action to change the law.” The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement — one that even the President and OLC previously admitted would require a change to the law.

75. At least for the 4 million people who will benefit from the DHS Directive, Congress has taken several steps to curtail the reunification of undocumented immigrants and their documented family members. The undocumented parent of a U.S. citizen or legal permanent resident generally can stay in the United States only by (i) waiting until their child turns 21, (ii) leaving the country, (iii) waiting 10 more years, and then (iv) obtaining a family-preference visa from a U.S. consulate abroad. See 8 U.S.C. §§1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255. The Defendants cannot faithfully execute the law by directly contravening Congress’s objectives.

76. Accordingly, the Defendants’ actions violate the Take Care Clause.

The President’s statement that he “took an action to change the law,” will soon join his promise that Obamacare was “not a tax,” and “If you like your plan, you can keep your plan,” as among the biggest off-script blunders of recent memory.

The remaining counts focus on violations of the APA.

82. The Defendants promulgated and relied upon the DHS Directive without authority and without notice-and-comment rulemaking. It is therefore unlawful. …

84. The APA requires this Court to hold unlawful and set aside any agency  action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).

85. The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress. See, e.g., ¶ 75, supra.

86. As such, the DHS Directive violates the aforementioned provisions in 5 U.S.C. § 706, and it is therefore unlawful.

At this stage, the complaint only seeks declaratory relief, though I imagine injunctive relief will be forthcoming:

Plaintiffs respectfully request the following relief from the Court:

A declaratory judgment and injunction that the Defendants’ deferred action program violates the Take Care Clause;

A declaratory judgment that the Defendants’ deferred action program is procedurally unlawful under the APA;

A declaratory judgment that the Defendants’ deferred action program is substantively unlawful under the APA; and

All other relief to which the Plaintiffs may show themselves to be entitled.

Stay tuned.

In a series of crowd-sourced questions, courtesy of Ron Collins, Judge Posner weighs in on the (few) things he has not considered. By the principles of expressio unius, I’ll assume Posner has studied everything else.

Jurisprudence:

I never met or had a class from [Lon] Fuller, and never cottoned to his views, and I don’t remember whether I ever read that debate. I never took a course on jurisprudence and I don’t think I had any interest in it. As an academic I became interested in it and wrote about it.

Alternative Dispute Resolution in international matters:

I don’t know; I haven’t studied the issue, and have only a few cases.

Judicial decision-making in foreign judiciaries:

I don’t know much about foreign judiciaries, except the U.K.’s. I assume judicial decision-making varies primarily with the structure of the judiciary. In the inquisitorial systems the structure is bureaucratic; judges are appointed right after or shortly after graduation from law school (more precisely from a college major in law) to a junior judicial post and are promoted in accordance with how they are evaluated by their superiors. Procedure is informal, documentary evidence is strongly preferred, deference to legislatures greater because the legislators tend to be better disciplined. But these are just impressions.

That judicial papers are private!

I didn’t know it was our private property! I agree it should belong to the government and I have always assumed it did belong to it. I certainly wouldn’t claim any property right in the paper or electronic documents in my case files or archived e-mail. However, I think whoever the custodian is should protect certain confidences, especially communications between judges.

Posner has no plans for his papers.

No plans.

Whether corporations should have constitutional rights:

I don’t know whether corporations should have any constitutional rights, although in truth I’ve never thought about the issue. I should think that the constitutional rights of persons employed by, owners of, creditors of, etc. would be adequate to protect legitimate business interests. But as I said, I haven’t thought about the question.

This response is odd, because two questions earlier he said the idea that free speech protects “spending money to influence elections” has “no constitutional or pragmatic basis.” He may have meant spending by individuals, but this question would seem to entail corporate spending.

The free-speech clause of the First Amendment has no real content, owing to its brevity, and society has changed too much since 1791 to enable any guidance to be obtained from practices relating to speech in that era. The idea that free speech protects burning the American flag,spending money to influence elections, harassing abortion clinics (the recent McCullen decision) (to choose just three of many possible examples) has no constitutional or pragmatic basis that I can see, and just reflects the political preferences of particular Justices.

Posner never considered the abrogation of state sovereign immunity under Article 1 powers:

I haven’t thought about your question. I find it a little difficult to take seriously the notion of state “sovereign” powers. I recognize that the Constitution gives the states some attributes of sovereignty, but they have to be very limited to enable the society to function effectively. This is a single country to an extent it was not when the Constitution was originally ratified. The Fourteenth Amendment greatly, and I think rightly, curtailed state sovereignty.

Posner has no thoughts on how the “pressure on costs of legal education will affect subsidization of the scholarly work of law professors?”

I don’t know.

A fascinating take by Thomas Edsall in the Times about how Obamacare has pigeonholed the Democrats, and forced them to defend a law that is benefiting a small corner of their constituency, and making many others materially worse off.

The ability of the Democratic Party to convince middle-class voters that it is on their side is by no means guaranteed. In mid-November, 2008, just after Obama first won election, 55 percent of voters had a favorable view of the Democratic Party. In the immediate aftermath of the recent election,according to Gallup, the favorability rating of the Democratic Party had fallen to a record low of 36 percent.

During a September pre-election panel discussion on the continuing political repercussions of the Affordable Care Act, Charlie Cook, editor of the Cook Report, put his finger on the health care problem facing Democrats when he pointed out that the public perception of the party has been indelibly imprinted by Obamacare.

The Affordable Care Act has “framed where the Democratic Party is,” Cook said. “If I would sum up my assessment, it was huge, it did play a central role in framing everything.” By 2014, health care reform “lost a little bit of its oomph, but it still is more important in setting things up than any other issue was over the last six years.”

Although the Republicans have spent the last 6 years fighting Obamacare to the death, seeking to repeal the entire thing, Democrats have spent the same amount of time defending a fundamentally flawed law. Both sides are locked in this stalemate. While at one point, arguments about entrenchment seemed to favor Democrats, the laws sustained unpopularity (which I thought was fade) may tilt the other way.

Obamacare remains an increasing political liability.

Of the 60 Democratic senators who voted for Obamacare in 2010, 28 are no longer in office. Of course, not all of the retirements and defeats can be attributed to the advent of Obamacare, but the numbers are striking. The electoral scorecard suggests that Schumer may have less opposition than anticipated to his bid to shift the central concern of the party to more overtly economic issues.

Insofar as Democrats try to reduce hostility to Obamacare, they face two problems. The first is a Republican Party unwilling to support any legislation making the A.C.A. more palatable. The other is the danger that tinkering with any of the provisions that have provoked the strongest opposition could eviscerate the legislation. Among the provisions that have stirred opposition are the requirement that most Americans get coverage, the tax on medical devices and the excise tax on expensive, high-quality private health coverage. Removing existing provisions would require replacing lost funding with new revenue sources, which could provoke anger from multiple constituencies.

As if Democrats do not already have enough trouble, data released by the Centers for Medicare and Medicaid Services shows that many, if not most, of the seven million people who purchased insurance through the A.C.A. will either have to pay higher premiums or higher deductibles, or submit themselves to the complex process of switching plans.

More pressingly, the law certainly helps a small percentage of people, makes more worse off.

A Brookings Institution analysis of the winners and losers from Obamacare found that the program redistributes costs to the top 80 percent of the income distribution in order to provide benefits to the bottom 20 percent. The analysis, shown in Figure 1, reports that

incomes in the bottom one-fifth of the distribution will increase almost 6 percent; those in the bottom one-tenth of the distribution will rise more than 7 percent. These estimated gains represent averages. Most people already have insurance coverage that will be left largely unaffected by reform. Those who gain subsidized insurance will see bigger percentage gains in their income.

Could it be that Obamacare breaks the demographics strategy?

Even though midterm elections favor Republicans, the 2014 results show middle- and working-class dissatisfaction with the Democratic Party rising to dangerous levels, which threatens the party’s growing demographic advantages.

erhaps most notably, Republican House candidates in 2014 won 37 percentof the Hispanic vote, their highest percentage since Republicans rejected immigration reform in 2005, and a slight majority, 51-49, of Asian-American voters, who had been moving decisively in the Democrats’ favor. Asian-Americans and Hispanics are crucial to future Democratic presidential victories.

In combination with the growing Republican allegiance of whites, these trends raise the possibility that the Democratic plan for victory by demographics could implode, which would make the case for a full scale re-evaluation of its strategies and policies glaringly obvious.

Whatever you think of Senator Schumer, you begin to understand why he spoke out as forcefully as he did.

I think back, again again, to the speech President Obama gave at the Capitol Center Visitor Center the day before the House voted on the ACA, where he urged his members to vote for his because it was good policy, and good politics. As I recount in Unprecedented:

Obama had given the pep talk many times before and did not need notes. He appealed directly to those still on the fence. “Now, I still know this is a tough vote, though. I know this is a tough vote. I’ve talked to many of you individually. And I have to say that if you honestly believe in your heart of hearts, in your conscience, that this is not an improvement over the status quo . . . then you should vote no on this bill.” Yet he implored the legislators to do the right thing for America. “But if you agree that the system is not working for ordinary families, if you’ve heard the same stories that I’ve heard every- where, all across the country, then help us fix this system. Don’t do it for me. Don’t do it for Nancy Pelosi or Harry Reid. Do it for all those people out there who are struggling.”

The president also told his fellow Democrats that he thought their vote for the ACA would be pragmatic as well as principled. “I am actually confident—I’ve talked to some of you individually—that it will end up being the smart thing to do politically because I believe that good policy is good politics.” Obama’s forecast that this vote would be good politics proved inaccurate—many Democrats would lose their seats in 2010, largely owing to their ACA vote, and Nancy Pelosi would become the leader of the Democratic minority.

Obama closed with an impassioned plea. “It is in your hands. It is time to pass health care reform for America, and I am confident that you are going to do it tomorrow.” The president left the podium to a rousing round of applause.

Obamacare, born in acrimony, and bred in divisiveness, may go down in history as one of the most narrow-sighted political blunders of the 21st century. No one, on either side is happy with it. Chuck Schumer and Tom Harkin are finally speaking out. I suspect others will join soon. As I wrote in the Epilogue of Unprecedented:

For now, we are stuck with a rushed, incomplete version of a law that was never meant to be the final bill. And with the bloody political battle behind us, it is unlikely that any bipartisan support can be mustered to fix this “bug.” Although President Obama is proud that historians will call the ACA “Obamacare” and refer to it as his “legacy,” I think we should let history decide its fate.

This will be fodder for many more books to come.

This Arizona teenager, doing his best Santa Claus impersonation, tried climbing down the chimney when he was locked out of his home.

An Arizona teenager locked out of his house Tuesday night turned to the home’s chimney to get back inside — with disastrous results.

The 13-year old from Scottsdale took an extension cord and tied it to a vent and then went down chimney. He got stuck in the flue.

The boy still had his cell phone and was able to call 911 for help.

Rescuers were able to bring the teen out of the chimney safely.

The Darwin Award committee will take this nomination under advisement.

Tom Harkin, an “architect” of Obamacare, has joined Chuck Schumer in regretting the effort to pass the “really complicated” Affordable Care Act in 2010.

Sen. Tom Harkin, one of the coauthors of the Affordable Care Act, now thinks Democrats may have been better off not passing it at all and holding out for a better bill.

The Iowa Democrat who chairs the Senate Health, Education, Labor and Pensions Committee, laments the complexity of legislation the Senate passed five years ago.

He wonders in hindsight whether the law was made overly complicated to satisfy the political concerns of a few Democratic centrists who have since left Congress.

“We had the power to do it in a way that would have simplified healthcare, made it more efficient and made it less costly and we didn’t do it,” Harkin told The Hill. “So I look back and say we should have either done it the correct way or not done anything at all.

“What we did is we muddle through and we got a system that is complex, convoluted, needs probably some corrections and still rewards the insurance companies extensively,” he added.

Just last week Chuck Schumer made similar remarks.

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

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

Now Harkin would have gone the other way, and implemented full single-payer, or at the minimum a public option.

But he believes the nation might have been better off if Democrats didn’t bow to political pressure and settle for a policy solution he views as inferior to government-provided health insurance.

“All that’s good. All the prevention stuff is good but it’s just really complicated. It doesn’t have to be that complicated,” he said of the Affordable Care Act.

Harkin, who is retiring at the end of this Congress, says in retrospect the Democratic-controlled Senate and House should have enacted a single-payer healthcare system or a public option to give the uninsured access to government-run health plans that compete with private insurance companies.

“We had the votes in ’09. We had a huge majority in the House, we had 60 votes in the Senate,” he said.

He believes Congress should have enacted “single-payer right from the get go or at least put a public option would have simplified a lot.”

“We had the votes to do that and we blew it,” he said.

 

As I recount in Unprecedented, there were not even 60 votes for single payer. Recall that Senator Nelson was opposed to a government-run program, as we are reminded in his comments opposing a federal health care exchange in lieu of state exchanges. Ahem.

Harkin faults the President for not doing a better job persuading Nelson!

Harkin, however, believes Obama and Democratic leaders could have enacted better policy had they stood up to three centrists who balked at the public option: Sens. Joe Lieberman (Conn.), a Democrat turned independent, Blanche Lincoln (D-Ark.) and Ben Nelson (D-Neb.).

He argues they could have been persuaded to vote for the legislation if Obama had put more effort into lobbying them.

“The House passed public option. We had the votes in the Senate for cloture,” he said.

“There were only three Democrats that held out and we could have had those three,” he added. “[Sen.] Mark Pryor [D-Ark.] so we could have had Lincoln. We could have had all three of them if the president would have been just willing to do some political things but he wouldn’t do it.