Update on Amicus Brief in U.S. v. Texas

April 20th, 2016

While preparing an article for National Review on the oral arguments in U.S. v. Texas, I realized I included an erroneous citation on p. 28 of the amicus brief I co-authored for the Cato Institute and Professors Jeremy Rabkin and Randy Barnett. Today, Ilya Shapiro (counsel of record) served the Clerk of Court and counsel with a letter notifying them of the mistake. Here is the content of the letter:

Re: Brief Amici Curiae for the Cato Institute et al., United States v. Texas, No. 15-674

Dear Mr. Harris,

It has come to my attention that Cato’s brief in the above-referenced case has an erroneous citation that is worth correcting, out of my duty of candor to the Court, because it relates to an important point that is otherwise unsupported.

In our brief on page 28, we have the following sentence:

After the president announced the program, the House of Representatives resolved that the executive action was “without any constitutional or statutory basis.” Preventing Executive Overreach on Immigration Act of 2015, H.R. 38, 114th Cong. (2016), available at https://goo.gl/naJviy.

That citation is incorrect. The resolution that passed the House was the Preventing Executive Overreach on Immigration Act of 2014 (https://www.congress.gov/bill/113th-congress/house-bill/5759/actions), not the 2015 version. Accordingly, the citation should read: Preventing Executive Overreach on Immigration Act of 2014, H.R. 5759, 113rd Cong. (2016), available at https://goo.gl/oDYHp1.

While the error may seem trivial, the citation that currently appears references a bill that never made it out of committee and so cannot stand for the proposition that Congress repudiated DAPA. This all of course relates to the Take Care Clause issue that the Court added to the cert. grant—specifically Youngstown’s third tier of presidential authority, when executive power is at its nadir because it goes against congressional policy.

Please accept my apologies for the error and any resulting confusion.