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This past weekend I attended a conference at Yale Law School, and I was chatting with a former Justice Stevens clerk. I commented, “wow, he’s been awfully quiet of late.” She assured me that JPS is doing fine. For a lark, I checked the Court’s “speeches” page, and noticed that JPS hadn’t given a talk since March 24, 2015. I must have some sort of Stevens-spider-sense. His silence was broken on May 4 for a talk to the Lawyers for Civil Justice Membership Meeting. Among other topics, Justice Stevens criticizes Justice Kennedy’s majority decision in Iqbal, and insists that detainees from Guantanamo should be entitled to reparations like the victims of Japanese internment camps. (Steve Vladeck has more here).

JPS also decides to weigh in a controversial aspect of closing Guantanamo–the National Defense Authorization Act, which imposes restrictions on the transfer of detainees from the prison. He writes:

One of the reasons that they remain in custody is that Congress has enacted a flat ban on the transfer of any Guantanamo detainee to the United States for any reason whatsoever. Another reason is that Congress has imposed restrictions on the President’s ability to transfer detainees to foreign countries. Before such a transfer can occur, the Secretary of Defense must send congressional committees a letter thirty days beforehand explaining that the receiving country has taken or will take steps that “substantially mitigate the risk” that the individual will engage in hostilities against the United States. The Secretary must further explain why the transfer is in the national security interest of the United States. These onerous provisions have hindered the President’s ability to close Guantanamo, make no sense, and have no precedent in our history. Congress’s actions are even more irrational than the detention of Japanese American citizens during World War II.

There you have it. Congress’s imposition of a 30 day waiting period before a detainee is released is “more irrational” than President Roosevelt’s decision to exclude and round over 100,000 Japanese-Americans, and lock them in internment camps. Do I need to remind you that unlike Roosevelt’s unilateral executive action, this restriction comes from a bill that the President signed, along with (gasp) a signing statement?

In any event, it doesn’t really matter, as the President flatly ignored this law when he released the deserter Bergdahl in exchange for five, high-value detainees without providing any advance notice. Justice Stevens had no comments about that act.

 

Tonight, Texas filed its appellee brief in the 5th Circuit in Texas v. United States. Here is the introduction:

The Executive Branch unilaterally created a program that will grant mil- lions of unauthorized aliens lawful presence and eligibility for work permits and a host of significant benefits. The district court did not abuse its discretion by preliminarily enjoining that program, known as DAPA.

The Executive does not dispute that DAPA would be one of the largest changes in immigration policy in our Nation’s history. The President himself described DAPA as “an action to change the law.” ROA.69. At a minimum, this change required notice and comment under the Administrative Procedure Act. The preliminary injunction maintains the longstanding status quo pend- ing trial, and this preserves an effective remedy: Once this program goes into effect, it will be practically impossible to unwind all of its derivative conse- quences.

The Executive pretends that DAPA is mere inaction amounting to unre- viewable “enforcement discretion.” But DAPA does not simply abandon re- moval proceedings. It explicitly grants aliens lawful presence in this country and eligibility for work permits. “Lawful presence” is not some empty label; it is a status used throughout the United States Code. It has significant legal consequences, such as creating eligibility for numerous benefits—including Social Security, Medicare, the Earned Income Tax Credit, and unemployment benefits. In contrast, the Executive’s decision not to remove someone does not change that person’s preexisting legal status or confer eligibility for new benefits. Indeed, the district court’s injunction does not touch—and this law- suit has never challenged—the Executive’s separate memorandum establish- ing three categories for removal prioritization, or any decision by the Execu- tive to forego a removal proceeding.

Courts act within the public interest by maintaining the separation of pow- ers. DAPA’s sweeping change in immigration policy must come from Con- gress—or at the very least, only after notice and comment. The preliminary injunction thus preserves the Judiciary’s ability to protect the separation of powers and the rule of law.

Last month, the Colorado Attorney General called for the views of the United States in the original jurisdiction suit brought by Nebraska and Oklahoma.

Colorado understands the Plaintiff States’ frustration that national marijuana policy now hinges on a series of executive memoranda articulating a policy of “prosecutorial discretion.” See, e.g., Cole Memo at 3. But, again, although the Plaintiff States are willing to challenge the Administration’s non- enforcement of federal law, see Texas v. United States, 2015 U.S. Dist. LEXIS 18551, they have not done so here.

This demonstrates the need for the federal government’s involvement in this case. The Complaint and Brief in Support raise questions of federal enforcement policy that are “distinctively federal interests, best presented by the United States itself.”

As I noted, the true party in interest in this case is the United States, for its failure to enforce the controlled substance laws.  In today’s orders, the Court has called for the views of the United States.

Now, finally, we will get the Obama Administration on record explaining its failures to faithfully execute the laws. And yes, that will be cited in the inevitable Texas v. United States merit briefing.

Thursday evening I (finally) got to see The Originalist. This post will have spoilers, so stop reading if you still wish to see it. The show begins with Justice Scalia giving a talk at a law school. Edward Gero, the actor playing Scalia, got his mannerisms down to a tee. The voice was slightly off–not quite grumpy enough–but the facial expressions and smirks were perfect. Scalia is talking about why the Constitution does not allow affirmative action. Out of nowhere, an audience member sitting in the front row stands up and calls out to Scalia. After a moment, we realize that she is part of the play. She challenges Scalia that under the original Constitution, slavery was allowed. Scalia indulges her, and wishes her good luck with her legal career. She replies that she has an interview with him. D’oh.

The interview scene is fascinating, but unrealistic. Scalia desired to hire a liberal clerk to help him dismantle the other side’s arguments. The clerk-to-be, Kat–who went to HLS and clerked for Judge Wood–plays that part well. She’s not afraid of sparring with Scalia, and calls him a monster. Scalia plays the role well.

After she is hired, the Justice and the clerk have a number of discussions concerning United States v. Windsor. Scalia asks her if she can write an objective opinion. She says yes. Much of the play is about her proving that she can be accomplish that goal.

Scalia also takes her shooting. They use an AR-10. In what was definitely a nod to Justice Kagan, the “flaming” liberal loves shooting. (Really, it is a blast!).

In one of the odder turns, Scalia says someone from the Federalist Society would “help” Kat with her Windsor opinion. Absurd. But anyway, he is a sycophant ass-kisser, who worships the ground Scalia works on. In one of the more tense moments, the sycophant leaks to Politico that the clerk is a lesbian. In a showing of grace, Scalia tells her that he doesn’t care what she does in her personal life, even though later in the play Scalia insists that none of his kids could ever be gay. It was very touching the way they portrayed the scene, because she was mortified of what he would say.

In another moving scene, the clerk’s father passes away. Scalia takes her to church, and they pray together.

In the closing scenes, Kat tries to persuade Scalia to add a sentence to his Windsor dissent, acknowledging that both sides have valid points. Scalia refuses to do so, and insists he is the Justice. But in the final scene, Scalia reads his Windsor dissent from the bench, and includes that sentence. I checked his announcement from the bench, and as best as I can tell, that line was ad-libbed.

The program acknowledged Joan Biskupic and Nina Totenberg, who no doubt helped to lend an air of legal accuracy to the production. I would highly recommend it!