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On November 20, 2014, President Obama unveiled DAPA, an executive policy that would defer the deportation of up to four millions illegal aliens and afford them work authorization. One week later, Texas, joined by 25 other states, filed a lawsuit against this unprecedented expansion of executive power.

In January, I joined an amicus brief on behalf of the Cato Institute and law professors Josh Blackman, Jeremy Rabkin, and Peter Margulies supporting the challenge. While we broadly support comprehensive immigration reform, we argued that DAPA violated the president’s constitutional duty to take care that the laws were faithfully executed because this action went far beyond merely setting priorities on who will be pursued and deported given finite enforcement resources. It was highly unusual for Cato to file in a district court—amicus briefs of any kind are rare at this level—but this was a highly unusual situation.

On February 16, 2015, Judge Andrew Hanen blocked DAPA from going into effect, finding that the executive branch did not follow the proper administrative procedures—such as seeking comments from the public—before implementing what is effectively a substantive change in established immigration law.

The federal government appealed this judgment to the U.S. Court of Appeals for the Fifth Circuit (my old stomping grounds). It also filed for an “emergency stay,” arguing that Judge Hanen’s ruling causes irreparable damage to the United State and asking the appellate court to put it on hold. This was a cheeky maneuver given that Hanen’s ruling was itself a “temporary injunction” justified by the irreparable damage to the states that the judge determined would flow from DAPA’s operation. In effect, the government was asking for an “emergency” reversal of the district court, to which the Fifth Circuit panel didn’t seem particularly sympathetic at a hearing last month.

In any event, Cato and I, along with Professors Margulies and Rabkin, have now filed a brief on the underlying appeal that again supports the 26 states and argues that President Obama’s action amounts to an illegal expansion of executive authority. While the lower court did not reach this constitutional issue, the president’s duty to faithfully execute the laws is a cornerstone of our separation of powers and provides the background architecture upon which the administrative state has been constructed.

Our message is simple: the implausible defense of the president’s unilateral executive action requires a level of legal sophistry that puts Humpty Dumpty to shame. As Justice Robert H. Jackson recognized six decades ago in the seminal case of Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”), presidential lawmaking that lacks congressional support “must be scrutinized with caution.”

Such scrutiny will reveal that, even though Congress has previously authorized deportation deferrals and accompanying work permits, DAPA amounts to a deliberate effort to bypass Congress and conflicts with five decades of congressional immigration policy. The government implores the judiciary to believe that DAPA is a humdrum exercise of prosecutorial discretion based on modest new policy guidance that enable the Department of Homeland Security to prioritize resources. Don’t believe it.

I was largely agnostic about New York’s decision to adopt the Uniform Bar Exam until I read Erwin Chemerinsky’s editorial urging California to do the same. A single sentence drew my attention:

But the truth is that basic principles of law do not vary from state to state.

From a substantive perspective, this statement is wrong. Certain areas are largely standardized nationwide (criminal procedure, constitutional law, or contracts). These are subjects where the Supreme Court has intervened to federalize the law, or uniform codes were adopted in nearly all states. However, other areas of law are extremely localized, such property, family law, or trusts and estates. (These are probably the classes Chemerinsky refers to as “dull.”).

On a deeper level, this comment I think reflects an subtle disregard for the values of federalism. States have and continue to handle a wide array of legal issues differently. And this is something that should be celebrated, not swept aside. If law students are trained to believe that there is no difference between laws of different states, then an entire generation of lawyers will have even less regard for the values of federalism, wherein the states can serve as laboratories of democracy. There is an importance in State A and State B being able to approach the same principle of law in different ways. Prioritizing a uniform bar exam will diminish respect for that value.

Perhaps it is true, as the Dean notes, that “lawyers can learn the quirky specifics as they go.” But we should at least acknowledge there are important difference between the law, and this is a good thing. This is not to say the Uniform Bar Exam is a good or bad idea–frankly I haven’t considered all the costs and benefits. But it is wrong to chuck aside the fact that states do handle questions of law differently.

The Washington Post reports that due to the gridlock, Washington can accomplish less, and lobbying has shifted to the states.

Lobbyists aren’t having much luck on a gridlocked Capitol Hill — so more and more, they’re opening their wallets in state capitols around the country. Not keeping pace with the surge, say watchdog groups: the disclosure laws that are supposed to keep the influence industry in check.

Battles in legislatures between rival energy companies; powerful medical interests like doctors, hospitals and insurers; and even environmentalists and plastic bag manufacturers have fueled huge growth in lobbying spending at the state level, even as spending has plateaued — and even waned — at the federal level.

A Washington Post review of lobbying spending in states shows professional advocates reported spending at least $2.2 billion on activity aimed at influencing state legislators in 28 states where data was available during the 2013-2014 biennium — with virtually every state seeing dramatic growth over the last decade.

At the same time, total spending on federal lobbying activities has fallen. After hitting a peak in 2010, when advocacy groups reported spending $3.52 billion on lobbying, that number dropped to $3.24 billion in 2014, according to data maintained by the Center for Responsive Politics.

My reaction? Good! I would much rather have lobbyists try to seek rents in all 50 state capitals. The transaction costs are much higher, and it will be harder to impose systematic, blanket rules across the country.

“When nothing’s happening in Washington, D.C., it’s happening in the states,” said Frank McNulty, a former Republican speaker of the Colorado House of Representatives who retired from office earlier this year. “You tend to see all these public policy issues work their way down to the state level because, whether it’s an environmental organization or a Fortune 500 company, they’re still going to try to move their agenda.”

Last year the Times reported that the Republican Governors Association explained,”With Congress producing so little legislation, governors’ offices have become attractive targets.” Isn’t this federalism unleashed. 50 states serving as the laboratories of democracy? Why is this a bad thing. The article cites a lack of disclosure laws but seems to miss the broader picture that gridlock is hobbling the power of D.C.

The theme of our government from 2009-2016 has been Gridlock. (That is likely to be the title of a soon-to-be announced book project). One of the major benefits of gridlock is that the federal government spends less money. When Congress can spend less money, interest groups have less of an incentive to lobby politicians in Washington. In essence, gridlock reduces rent-seeking. More generally, the less government can do, the less incentives there are for rent-seeking. Short of enforcing the separation of powers, gridlock actually works to shrink the power of the federal government. (Taking the opposite position is Rick Hasen, who argues that limited government would not do away with these problems).

Doesn’t this bring us back to the 17th Amendment, which required the direct election of Senators. David Schleicher has argued that one of the advantages of the 17th Amendment is that state governments are no longer subject to intense lobbying, making them less susceptible  to corruption. But the flipside to that is that all of the lobbying takes place in D.C., which results in much more wealth being distributed by the national government.

I address this balance “The Burden of Judging” in the NYU Journal of Law & Liberty.

When the federal government assumes various aspects of the police power once reserved for the states—thereby diminishing our vertical federalism—rent seeking becomes much easier. It takes much less time, effort, and money to lobby and petition a single government in Washington that can easily impose nationwide rules, than to lobby in 50 state capitols to achieve rules that can have an impact within one state’s borders. In this way federalism increases the cost of rent-seeking. It makes capture more difficult, and diminishes the impact of special interest legislation.[1] Federalism also permits states to engage as laboratories of democracy, to experiment in different forms of government.[2]

[1] Professor Todd Zywicki has made similar arguments about the 17th Amendment. By taking the state legislatures out of the public choice equation, special interests will find it more worthwhile to petition Senators in Washington who can impose one-size-fits-all rules nationwide. See Todd Zywicki, Repeal the Seventeenth Amendment, National Review Online (Nov. 15, 2010), http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki. In contrast, Professor David Schleicher argues that the 17th Amendment improved public choice politics, as it removed the state legislatures from the corrupting influences of rent seeking.

Even as the 5th Circuit Court of Appeals considers whether to grant a stay, Judge Hanen continues to move the case along down in Brownsville. The latest order, issued today, offers supplemental authority for its previous denial of a stay.

First, it cites congressional testimony by Director of Immigration and Customs Enforcement, Sarah Saldaña, who confirmed the President’s remarks that any officers who try to exercise discretion, and do not follow the dictates of the 2014 DAPA memorandum will be disciplined.

The Court supplements its Order solely to acknowledge the existence of congressional testimony that confirms the President’s statements. The Director of Immigration and Customs Enforcement, Sarah Saldaña, testified before the House Judiciary Committee on April 14, 2015. Her testimony reiterated that any officer or agent who did not follow the dictates of the 2014 DHS Directive would face the entire gamut of possible employee sanctions, including termination.1 While this Court had no reason to doubt President Obama’s statements, and while the Government has assured the Court that it can rely on what the President says, the Court issues this Supplemental Order to denote that the President’s statements have now been reaffirmed under oath by the very person in charge of immigration enforcement.

The court notes in a footnote that this further suggests officers have no discretion:

This testimony is also relevant to other issues in this case, including the fact that it confirms the evidence, already found by this Court to be probative, that DHS employees have no real discretion to exercise in this area.

Further, the court augments its abdication analysis, drawing a tighter link between DAPA and the facts in Adams v. Richardson, the D.C. Circuit case relied on by the Court in Heckler v. Cheney:

Just like HEW giving federal funds to those violating the civil rights laws in Adams, the DHS in this case is giving a variety of rewards to individuals violating the country’s immigration laws. This general policy of affirmatively awarding benefits is not merely an exercise of prosecutorial discretion. The Government has announced, and has now confirmed under oath, that it is pursuing a policy of mandatory non-compliance (with the INA), and that any agent who seeks to enforce the duly-enacted immigration laws will face sanctions―which could include the loss of his or her job.3 If the solicitation of voluntary compliance (questioned by taxpayers who are rarely accorded standing) equates to abdication, certainly mandatory non-compliance by the Government (questioned by twenty-six states) does as well.

 

On Thursday, May 7, I had the honor of speaking to the Galveston County Bar on their Law Day Celebration of Magna Carta. I spoke about the influence of Magna Carta on our Constitution, through the lens of the Supreme Court. Specifically, I focused on 8 provisions of Magna Carta that have been cited by SCOTUS. Below the video, I include some rough notes I took, listing all of the cases that cite the Great Charter. Enjoy.

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