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The Hill reports that Senator Cornyn has reintroduced the Concealed Carry Reciprocity Act. While the text of the 2015 version is not yet available, the 2014 version is available here. In short, a state would be required to recognize concealed carry permits from all 50 states, and treat them in the same manner as those who issued in that state. The problem arises because states have vastly differing standards for qualifying for concealed carry permits. Some “shall issue” states require the government to issue permits, so long as the applicant passes a background check and can demonstrate some level of competency with a handgun (the length of testing varies). Other “may issue” states require that the applicant demonstrate a “serious need” for a gun. In places like California or New York, obtaining such a permit is virtually impossible for most people. While some courts have found these “may issue” licensing regimes are unconstitutional, others have been upheld.

Alas, the Supreme Court has not seen fit to resolve this important issue. Under Heller, the question of conceal carry remains somewhat open. I think Heller can be read to support carrying outside the home (why would the opinion need to mention limitations in “sensitive places,” if the right was limited to the home), but I will concede it is not ironclad. Until the Supreme Court acts and takes a case, does Congress have the power to implement a law such as the Concealed Carry Reciprocity Act?

Two possible answers jump to mind. First, section 5 of the 14th Amendment. Could Congress use its powers to enforce the provisions of the first 8 amendments of the Constitution, including the 2nd Amendment? I blogged about this idea in 2011 (here and here), when a similar bill was proposed based on Section 5. However, this interpretation runs into serious Boerne problems. With RFRA, Congress attempted to expand the protection of the First Amendment beyond that which the Supreme Court adopted in Employment Division v. Smith. The Court rejected this approach, explaining (very clearly) that the Justices, and not Congress, get to define the contours of the First Amendment. (Whether this is correct or not is a moot point).

I think a similar analysis pertains for the conceal carry law. While it pains me that the Court has not seen to take a single 2nd Amendment case about carrying outside the home, even though many have been neatly teed up for the Justices, the state of the law now is not resolved. The Congress can’t fill in the gaps, and arguably broaden the scope of 2nd Amendment protections.

Further, there would be “congruence and proportionality” issues, as this law imposes significant federalism costs by forcing states to recognize permits from other states that have much more lax licensing schemes. To get here, the Court would have to hold not only that the 2nd Amendment applies outside the home, but “may issue” regimes are unconstitutional. It is not enough that a state allows the right to be exercised (all 50 states have some permitting regime), but Congress would dictate how the state should offer it. The Section 5 analysis does not carry the day here.

The second possible answer, is the commerce clause coupled with the necessary and proper clause. The text of the bill does not explicitly cite interstate commerce as a basis for the bill, but it mentions guns traveling in interstate commerce. There are a few problems here. First, it is perverse that conservatives, who have for decades railed against an expansive commerce clause jurisprudence, would suddenly cite the commerce clause to advance gun rights.  Even Justice Thomas and Scalia noted the partial birth abortion ban was potentially deficient under the commerce clause (see here, here, here, and here).

Second, putting aside the chutzpah of conservatives citing the commerce clause (alliteration!), the argument is weak because Congress is not regulating the guns, but the licensing regime. Commerce alone will not carry the day, but Congress will have to rely on what Justice Scalia called in Printz “the last, best hope of those who defend ultra vires congressional action”–the Necessary and Proper Clause. Here, there is a potential constitutional wrinkle post-NFIB. While it may indeed be necessary (read “convenient,” per M’Culloch) for Congress to require that states recognize out-of-state permits to promote interstate commerce, is it “proper”? NFIB clarified this second prong of N&P analysis, and asks whether this is a “proper” intrusion into state sovereignty. (See Will Baude’s excellent article). Specifically, would this law require the exercise of a “great substantive and independent power” that would need to be “implied as incidental to” or “used as a means of executing” the Commerce Power? In other words, would forcing a state to recognize out-of-state gun licenses, amount to such a great imposition on state sovereignty, to no longer be proper?

Justice Scalia alluded to this issue in his dissent in Bond v. United States (Part II), in the context of the treaty power, though there is no reason to think commerce should work much differently–if anything, the treaty powers are greater than the commerce powers due to concerns over international relations.

Holland places Congress only one treaty away from acquiring a general police power. The Necessary and Proper Clause cannot bear such weight. As Chief Justice Marshall said regarding it, no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” McCulloch v. Maryland, 4 Wheat. 316, 411 (1819); see Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738, 1749–1755 (2013). No law that flattens the principle of state sovereignty, whether or not “necessary,” can be said to be “proper.” As an old, well-known treatise put it, “it would not be a proper or constitutional exercise of the treaty-making power to provide that Congress should have a general legislative authority over a subject which has not been given it by the Constitution.” 1 W. Willoughby, The Constitutional Law of the United States § 216, p. 504 (1910).

The Conceal Carry Law would attempt to give Congress a “general legislative authority” and proscribe rules concerning the police power for all 50 states. But even more than that, it would allow a single state–that with the most permissive gun laws (Utah or Florida?)–to define the nationwide standard for conceal carry laws. If one state decided background checks were not necessary, than all 50 states would have to comply. This application of N&P turns federalism on its head. Rather than states serving as laboratories, all states would be bound by the boldest experiment.

I should make clear that my reading of the 2nd Amendment and Heller protects a right to concealed carry outside the home, but I can’t envision any Supreme Court decision mandating that all 50 states must adhere to the same standard as the most lax state. Congress can’t achieve that result, through either its commerce or N&P powers. The structural protections of our Constitution–enumerated powers and state sovereignty–should not be so easily cast aside. If the Court does (as it should) hold that the 2nd Amendment protects conceal carry, regimes in dozens of states will have to be changed.

As it stands now, almost three dozen states already recognize permits from other states through an interstate compact. But excluded from this list are virtually all of the “may issue” states, which do not want to recognize more permissive licenses from Utah or Florida.

In the end, this debate is purely academic. Even if it passes a Senate filibuster, the President will veto it in a heartbeat. But it is sad that conservatives would rely on such a dubious constitutional standard to expand a fundamental constitutional right.

Justice Thomas, joined by Justice Scalia, dissented from the Court’s denial of a stay in Alabama’s petition to put on hold a judgment invalidating its ban on same-sex marriage–and he does not hold back.

First, Justice Thomas notes that generally, when a state law is declared is unconstitutional, the ordinary practice is to put the ruling on hold.

When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. See, e.g., Herbert v. Kitchen, 571 U. S. ___ (2014); see also San Diegans for Mt. Soledad Nat. War Memorial v. Paulson, 548 U. S. 1301 (2006) (KENNEDY, J., in chambers) (staying an injunction requir- ing a city to remove its religious memorial). Although a stay is not a matter of right, this practice reflects the particularly strong showing that States are often able to make in favor of such a stay. Because States are required to comply with the Constitution, and indeed take care to do so when they enact their laws, it is a rare case in which a State will be unable to make at least some showing of a likelihood of success on the merits. States also easily meet the requirement of irreparable injury, for “‘[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’ ” Maryland v. King, 567 U. S. ___, ___ (2012) (slip op., at 2–3) (ROBERTS, C. J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in cham- bers)). The equities and public interest likewise generally weigh in favor of enforcing duly enacted state laws.

Keeping with this practice, Thomas notes it was not surprising the Court granted a stay in Herbert v. Kitchen (Utah) or McQuigg v. Bostic (Virginia).

It was thus no surprise when we granted a stay in simi- lar circumstances a little over a year ago. See Herbert v. Kitchen, supra. Nor was it a surprise when we granted a stay in similar circumstances less than six months ago. McQuigg v. Bostic, 573 U. S. ___ (2014). Those decisions reflected the appropriate respect we owe to States as sovereigns and to the people of those States who approved those laws.

Thomas explains that the petition from Alabama should have been treated the same, even though the Court denied seven pending petitions on October 6.

This application should have been treated no differently. That the Court more recently denied several stay applica- tions in this context is of no moment. Those denials fol- lowed this Court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws.

Next, Thomas admits that he “disagreed” with the denial of stays from Florida, South Carolina, and Kansas, respectively, because at the time certiorari had been granted:

Although I disagreed with the decisions to deny those applications, Armstrong v. Brenner, ante, p. ___; Wilson v. Condon, ante, p. ___; Moser v. Marie, ante, p. ___, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. .

However, after the Court granted certiorari a few weeks ago based on the 6th Circuit forking a split, the Court will resolve the issue this term. Now, the AG of Alabama is in an even stronger position to get a stay.

That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of Alabama is thus in an even better position than the appli- cant to whom we granted a stay in Herbert v. Kitchen.

Thomas then faults the district judge in Alabama (and I would add the 11th Circuit) for not maintaining the status quo, as the issue was pending before the Court.

Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to pre- serve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26).

Thomas then unloads a very, very serious attack at the Court’s institutional credibility.

This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is. Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States.

Thomas stresses the fact that the Court’s decision has little respect for the people who voted for these referenda–perhaps based on the presumption that such voters may only be motivated by animus.

It has similarly declined to grant certio- rari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them.

Most importantly, even though the Court has granted cert, and will render a decision in less than 4 months, the Court couldn’t put the issue on hold.

In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

At this point, it is a complete fait accompli. For Thomas, a stay should issue to preserve the status quo and respect the people who voted for these laws.

I respectfully dissent from the denial of this application. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.

The entire enterprise of the same-sex marriage cases has, from the Court’s perspective, taken on this odd sense of inevitability. Justice Ginsburg has notoriously claimed, over and over again, that the Court would eventually rule in favor of gay marriage, when the time is right. For all the hyperbolic talk about King v. Burwell destroying the institution of the Court–recall only 1 out of 6 Circuit Judges found that the IRS Rule unambiguously favors the government–there has been a glaring lack of concern for the rule of law and procedure for the same-sex marriage cases. I am working on an article with a colleague that addresses these procedural issues, starting with Utah and leading up to the Court’s ultimate blessing. The article will say nothing about the merits, but rather look at the contorted path the case took.

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, as I recount in Unprecedented:

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. Texas also quoted at length statements made by the President that he lacked the power to defer the deportations.

Once again, the DOJ has to defend this statement. In its sur-reply, it writes:

Plaintiffs mischaracterize the President’s prior statements concerning the Executive’s inability to grant a non-statutory path to lawful immigration status (which the Secretary has not done here) as implying that the immigration laws and other congressional enactments do not confer discretion upon the Secretary to prioritize removals, including through the use of deferred action. But no such concession has been made, and Supreme Court precedent makes clear that such discretion continues to exist. See Arizona, 132 S. Ct. at 2499; AAADC, 525 U.S. at 483-84.

Oh, “such concession[s]” were made. These statements were made directly in the context of whether the President could use deferred action to stop deportations.

If I may quote at some length from Part II, the President directly stated that he could not defer the deportations of the parents of U.S. Citizens.

DAPA bears a similar pedigree to DACA. From 2012 through 2014, the Congress considered comprehensive immigration reform. During this time, the President consistently stated that he lacked the authority to defer deportations of more aliens. Further, he reasserted that he pushed the boundaries as far as he could with DACA. His comments ranged from the general, to the very specific. First, he explained that the Constitution imposes limits on what he can do as President: “[A]s the head of the executive branch, there’s a limit to what I can do. . . . [U]ntil we have a law in place that provides a pathway for legalization and/or citizenship for the folks in question, we’re going to continue to be bound by the law.”[1]

Second, during the Presidential debate that said he could not stretch his executive powers any further beyond DACA: “we’re also a nation of laws. So what I’ve said is, we need to fix a broken immigration system. And I’ve done everything that I can on my own.”[2] Third, the President directly refuted the notion that he could defer removals to protect families. During a Google+ Hangout on immigration reform, a question was asked about whether the President could halt deportations to prevent breaking up families. The President replied “This is something I’ve struggled with throughout my presidency. The problem is that you know I’m the president of the United States, I’m not the emperor of the United States. My job is to execute the laws that are passed. Congress has not changed what I consider to be a broken immigration system. And what that means is that we have certain obligations to enforce the laws that are in place.”[3] However, with DACA the President stressed, “we’ve kind of stretched our administrative flexibility as much as we can.”[4]

Fourth, in an interview, the President was asked if he would “consider unilaterally freezing deportations for the parents of deferred action kids.”[5] The President replied that the DREAM Act could not be expanded beyond “young people who have basically grown up here . . . if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So that’s not an option.”[6]

Fifth, during a town hall meeting, the President was asked whether he could do for an “undocumented mother of three” what he “did for the dreamers.” The President replied that he could not extend the relief given to the dreamers to these parents:

I’m not a king. . . . [W]e can’t simply ignore the law. When it comes to the dreamers we were able to identify that group. . . . But to sort through all the possible cases of everybody who might have a sympathetic story to tell is very difficult to do. This is why we need comprehensive immigration reform. . . . [I]f this was an issue that I could do unilaterally I would have done it a long time ago. . . . The way our system works is Congress has to pass legislation. I then get an opportunity to sign and implement it.[7]

However DAPA accomplished exactly what the question wanted—defer deportations for the parents of citizen-children. More directly the President was asked directly whether he could halt deportations of non-criminals—another category of aliens protected by DAPA. He replied, “I’m not a king. I am the head of the executive branch of government. I’m required to follow the law.”[8]

Sixth, during a speech on immigration reform in San Francisco, hecklers called out, at least seven times, “Stop deportations!” The President replied:

[I]f in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal.[9]

The President’s seventh, and most pointed comments, came on March 6, 2014, during an appearance on Univision.[10] The host asked him about “Guadalupe Stallone from California, [who] is undocumented. However, her sons are citizens.”[11] She feared deportation, even though her children could remain in the country. The President explained that he could not help Ms. Stallone. “[W]hat I’ve said in the past remains true, which is until Congress passes a new law, then I am constrained in terms of what I am able to do.”[12] DACA, he admitted “already stretched my administrative capacity very far.”[13] The President could no further because “at a certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’”[14] Citing Congressional power to distribute funding, the President reiterated, “I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.”[15] Under DAPA, Ms. Stallone’s deportation would be deferred because she is a mother of minor citizen children. This is true, even though as the President explained, Congress imposed laws, and funded the agencies, so the President had to enforce the law.

However, leading up to November 2014, the President’s position evolved from “impossible” to “absolutely.”

[1] TRANSCRIPT: President Obama’s Remarks at Univision Town Hall (Sep. 20, 2012), http://insider.foxnews.com/2012/09/20/transcript-president-obamas-remarks-at-univision-town-hall

[2] Presidential Debate in Hempstead, New York (Oct. 16, 2012), http://www.presidency.ucsb.edu/ws/index.php?pid=102343&st=immigration&st1=obama (emphasis added).

[3] President Obama on Immigration Reform in a Google+ Hangout — Part 1 (Feb. 21, 2013), http://youtu.be/-e9lmy_8FZM?t=22s.

[4] President Obama on Immigration Reform in a Google+ Hangout — Part 1 (Feb. 21, 2013), http://youtu.be/-e9lmy_8FZM?t=22s.

[5] Obama: Halting Deportations “Not An Option,” Would Be “Ignoring The Law,” Real Clear Politics (Sept. 17, 2013), http://www.realclearpolitics.com/video/2013/09/17/obama_halting_deportations_not_an_option_would_be_ignoring_the_law.html. Ultimately, the OLC Opinion would find the President could not do this.

[6] Obama: Halting Deportations “Not An Option,” Would Be “Ignoring The Law,” Real Clear Politics (Sept. 17, 2013), http://www.realclearpolitics.com/video/2013/09/17/obama_halting_deportations_not_an_option_would_be_ignoring_the_law.html.

[7] Obama tells Telemundo he hopes for immigration overhaul within 6 months (Jan. 30, 2013), http://nbclatino.com/2013/01/30/obama-tells-telemundo-he-hopes-for-immigration-overhaul-within-6-months/

[8] Glenn Kessler, Obama’s royal flip-flop on using executive action on illegal immigration, Washington Post Fact-Checker (Nov. 18, 2014), http://www.washingtonpost.com/blogs/fact-checker/wp/2014/11/18/obamas-flip-flop-on-using-executive-action-on-illegal-immigration/

[9] Remarks by the President on Immigration Reform — San Francisco, CA, (Nov. 25, 2013), http://www.whitehouse.gov/photos-and-video/video/2013/11/25/president-obama-speaks-immigration-reform#transcript

[10] Univision News Transcript: Interview with President Barack Obama, Univision (March 5, 2014), http://communications-univisionnews.tumblr.com/post/79266471431/univision-news-transcript-interview-with.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

In distinguishing DAPA from past instances of deferred action, Texas’s reply brief cited my article which argues that these previous policies served as temporary bridges, where a lawful status was waiting on the other side of the deferral.

Nor can the Defendants find congressional acquiescence in four other deferred action programs that were even smaller than Family Fairness: (1) foreign students affected by Hurricane Katrina; (2) widows of U.S. Citizens; (3) T and U visa applicants; and (4) deferred action for VAWA self-petitioners. See Opp. 8-9. Each of those programs involved classes of immigrants who Congress — not the Executive — already had decided could remain lawfully in the United States. Deferred action was used as a stop-gap measure while the immigrants transitioned to a lawful status that had been provided by Congress. In granting deferred action status to those immigrants, the Executive Branch was implementing Congress’s will — not exercising its own by brute force. See Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 GEORGETOWN LAW JOURNAL ONLINE __ (forthcoming 2015), available at ssrn.com/abstract=2545544. … Deferred action was a bridge from one lawful immigration status to another. … Like all other instances of deferred action, this program was created for the benefit of immigrants with existing lawful status in the U.S. or at very least the immediate prospect of such status. And, like in all the other cases, the program was intended as a temporary bridge to another form of lawful status for which the aliens had already established eligibility.

Or, as I explain in my article:

Previous instances of deferred action exhibit two currents: (1) the alien has an existing lawful presence, or (2) the alien has the immediate prospect of lawful residence or presence. For each, deferred action acted as a temporary bridge from one status to another, where benefits were construed as immediately arising post-deferred action. These threads bring the deferred action within the ambit of Congressional policy embodied inside the INA. However, neither principle holds true to the DAPA. With DAPA, deferred action serves not as a bridge for beneficiaries between two approved statuses, but as a tunnel to dig under and through the INA.

In its sur-reply, the government responded to the Bridge argument (p. 29):

Although Plaintiffs contend that prior deferred action programs were limited to providing a “temporary bridge” to lawful status for which recipients were already eligible by statute, that was true of neither the 1990 Family Fairness Program nor 2012 DACA (which Plaintiffs are not challenging here).

What the government doesn’t say here is almost as important as what it does say. In previous briefings, DOJ recited OLC’s discussion of four specific deferred action programs: “(1) foreign students affected by Hurricane Katrina; (2) widows of U.S. Citizens; (3) T and U visa applicants; and (4) deferred action for VAWA self-petitioners.” Each of these did serve as a “temporary bridge,” as lawful status was awaiting on the other side of the deferral. The government mentions these nowhere in its 50 page sur-reply brief–with good reason. They aren’t good arguments. I wonder if the government is actually backing off these positions? Time will tell.

Instead, the government falls back on the 1990 Family Fairness program, which it underplayed in its previous filing. This policy served as a bridge of a very different type.

The government is correct that the Family Fairness program was not a bridge “to lawful status for which recipients were already eligible by statute.” But as I noted here and here, it was a temporary bridge during the 9 months between when the House enacted immigration reform,  and when the Senate would implement it. It was meant, in all respects to be temporary. Further, the aliens who were deferred were the spouses and children of those whom Congress granted relief to under the 1986 immigration reform. This is not the case for DACA, or DAPA.

The argument continues that there is no “statute or regulation” that limits discretion based on whether a “temporary bridge” exists:

Plaintiffs have cited no statute or regulation that confines the Executive’s exercise of deferred action to only providing a temporary bridge to lawful status.

The government is correct. But no statute or regulation is needed. The entire enterprise of this case focuses on whether the actions of the President are “consonant” (to use OLC’s word) with congressional policy. To determine if DAPA is consistent, courts will do what courts do–compare the present program to past programs. If all past programs are typified by serving as a “bridge,” then this is what Congress has acquiesced to. Future programs that are inconsistent with this bridge program would not fall into the acquiescence. This is the basis of Justice Jackson’s concurring opinion, which the government seeks to run away from.

Next, the government repeats the assertion that Congress has “never” limited deferred action, citing the OLC memo.

Nor could they, as Congress has long been aware of the practice of granting deferred action, including through the use of categorical framework, and has never acted to disapprove or limit the practice. OLC Op. at 18. To the extent that Congress has considered legislation that would limit the practice of granting deferred action, it has never enacted such a measure. See OLC Op. at 18 n. 9.

This simply isn’t true. Deferred action exists within a limited scope of congressional acquiescence. Part I of my series addresses this point at great length.

The opinion founders, however, on the complexities of immigration law, and thus its specific application of the opinion’s framework to the Executive’s initiatives is ultimately unconvincing. The opinion overstates the degree to which the Immigration and Nationality Act (“INA”) is concerned with family unification, misapprehends the extraordinarily narrow scope of relief provided to the parents of U.S. citizen and lawful permanent resident children under existing law, and misstates the limited scope of prior Congressional acquiescence to deferred action programs. These flaws undercut the opinion’s key conclusion that DHS’s deferred action programs are consistent with Congressional policy, and thus also place into question the ultimate judgment that these initiatives are permissible exercises of enforcement discretion.

Finally, the government places no weight in the fact that the current Congress is attempting to “rebuke” or defund DAPA.

Plaintiffs’ contention that the House of Representatives has issued a “rebuke[]” of the Secretary’s November 20 guidance, Pls.’ Reply at 24, is irrelevant. As the Supreme Court has made clear, an unenacted bill is an unreliable indicator of legislative intent. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n. 11(1969); see also Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991).

This argument continues to ignore Justice Jackson. The Youngstown Court looked at whether Congress took any action after Truman seized the steel mills. In 1952, though Congress was silent, the Court found a violation of the Constitution. In Myers v. United States, the Court addressed the fact that Senate issued a resolution condemning President Jackson for removing on officer. In Noel Canning, Justice Breyer stressed that Congress as a body has not taken steps to repudiate inter-session recess appointments (though as Justice Scalia points, individual members have complained). Congressional condemnation as a whole after an act matters.  In a separation of powers case, a rebuke of the President’s power by Congress is evidence that the Executive acts unlawfully.

With DAPA, Congress has not been silent. They have been very, very loud.

Update: My colleague Peter Margulies, who was counsel on the brief I joined on behalf of the Cato Institute, has posted on SSRN his forthcoming article in the American Law Review, titled “The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law.” Peter discusses the Family Fairness program, and explains how it differs from DAPA. Here is an extended excerpt:

While proponents of DAPA sometimes cite the Family Fairness program implemented by immigration officials under Presidents Ronald Reagan and George H.W. Bush as precedent for DAPA,146 this analogy is inapposite. Family Fairness was ancillary to enumerated grants of status and far smaller than DAPA. Moreover, Family Fairness was within a short period ratified by Congress in the Immigration Act of 1990 – a prospect that is almost certain to elude DAPA, which has already generated substantial congressional opposition.

The administration of President George H.W. Bush heard leading legislators’ pleas and further liberalized the standard, making deferred action available to all spouses and children of IRCA beneficiaries.157 That grant of deferred action included relief from removal and work authorization while close relatives of IRCA beneficiaries waited for their visas to become current. Shortly after the McNary announcement, Congress passed the Immigration Act of 1990,158 which expressly prohibited the removal of spouses and children of IRCA beneficiaries who had entered the U.S. as of 1988 and made them eligible for work authorization. All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that relief.

In addition to being ancillary to Congress’s grant of legal status to IRCA beneficiaries, the Family Fairness program was modest in scope. As of 1989, only 10,644 people had applied for relief under the Reagan program.159 In 1990, new INS Commissioner Gene McNary predicted that the expanded Family Fairness policy would assist approximately 100,000 spouses and children of IRCA beneficiaries.160

In sum, the Reagan and George H.W. Bush deferred action programs were a bridge to a statutory grant of status in two ways. First, they stemmed from IRCA’s vast legalization initiative. Congress, in enacting IRCA, had already dealt with the biggest problem posed by immigration reform then and now: granting legal status to a large group of undocumented adults. Once Congress made it over that hump, a grant of lawful status to beneficiaries’ dependents was principally a matter of timing. Second, deferred action for this group of dependents resembled similar action taken for non-IRCA LPR sponsors whose relatives would within a bounded period be eligible for an immigrant visa. In both the IRCA and ordinary immigration context, deferred action for relatives of LPRs reduced the hardship and disruption caused by deporting relatives who could within a discrete period claim a legal status

In contrast with Family Fairness, DAPA offers work authorization and relief from removal to a huge group of foreign nationals with a long and uncertain route to legal status. Recall that unlawful entrants with post-entry U.S.-citizen children cannot even apply for an immigrant visa until their children turn 21.161 A foreign national who has been unlawfully present in the U.S. for a year or more is subject to the 10-year bar, and so must spend ten of those years outside the United States.162 That combination of protracted waiting time and prolonged enforced absence from the U.S. erects materially greater barriers to legal status than the discrete waiting period required of the spouses and children of IRCA beneficiaries. DAPA also offers work authorization and relief from removal to parents of LPRs, who have no ability under current law to petition for a parental visa.163 In its opinion supporting DAPA’s legality, OLC breezily touts prospective DAPA beneficiaries’ “prospective entitlement to lawful immigration status.”164 Given the sadly remote prospects for this cohort, OLC might as well have claimed that the narrator in The Beatles’ classic ballad, “The Long and Winding Road,” will find his beloved conveniently located in an apartment down the hall. The Beatles’ narrator was hopeful despite the odds; Congress has deliberately given prospective DAPA recipients little reason for analogous aspirations. That legislative choice is regrettable, but it is Congress’s to make.

This will be the first in a series of posts exploring various aspects of the government’s sur-reply in Texas v. United States. As I noted in an earlier post, the government’s previous filings were extremely lackluster. The new brief is significantly improved, and makes much stronger arguments. However, in making certain arguments, I think the government may have put forward certain factual predicates that will make their case much, much weaker on appeal. (For full disclosure I filed a brief supporting Texas).

The United States argues that Youngstown is not the correct framework to understand DAPA (p. 2):

Despite mentioning Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), only in passing in their opening brief, Plaintiffs have made clear through their Reply and at oral argument that their purported constitutional claim hinges fully on that case. But Youngstown is inapposite and fails to support Plaintiffs’ claim. In Youngstown, the Executive concededly acted outside statutorily-delegated authority and therefore sought to justify its actions by reference to the Take Care Clause. By contrast, the Secretary of Homeland Security’s actions here were based on authority delegated to him by Congress pursuant to statutes that require him to prioritize the enforcement of immigration laws, consistent with the scarce resources provided by Congress.

The government’s argument begs the question: Texas challenges whether Congress has in fact delegated this authority. The framework we use to determine the conjunction or disjunction of Congress and the President is Youngstown. Or more specifically, Justice Jackson’s framework in Youngstown. Yet, the government seems to fault Texas for citing “singularly” Justice Jackson:

Plaintiffs now focus singularly on Justice Jackson’s concurrence in Youngstown, 343 U.S. 579 (1952), to support their constitutional claim, but that case does not demonstrate an independent cause of action against the Executive under the Take Care Clause.

No offense to Justice Black’s “majority” opinion, but Jackson’s canonical concurring opinion has become the definitive statement of the separation of powers.

Then-Judge Roberts stated this fact clearly at his confirmation hearing during a colloquy with Senator Leahy:

SENATOR LEAHY: But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?
ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, ’52, whatever it was . . . . Youngstown’s a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR’s attorney general and certainly a proponent of expansive executive powers . . .

As fate would have it, John G. Roberts clerked for Justice Rehnquist the term that the Court decided Dames & Moore v. Regan, 453 U.S. 654 (1981), which (mostly) reaffirmed Youngstown.

Ditto for then-Judge Alito:

SENATOR SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson’s concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.
ALITO: I do. I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn’t answer every question that comes up in this area, but it provides a very useful way of looking at them.

And then-Judge Sotomayor:

The best description of how to approach those questions was done by Justice Jackson in his concurring opinion in the Youngstown’s case. And that opinion laid out a framework that generally is applied to all questions of executive action, which is that you have to look at the powers of each branch together.

Same for then-General Kagan:

And we have actually never argued that Article 2 alone would provide such authority, and the question you raise really — the usual framework that people use when they think about this question is something called Youngstown, the — of course, Justice Jackson’s opinion in Youngstown. And he sets forth three different zones

So yeah, Jackson is the rule of law.

The government also tries to distinguish Youngstown by explaining it was not a “Take Care” clause case.

To be clear, Youngstown did not involve a claim brought under the Take Care Clause against the President. Rather, the steel companies brought an action against the Secretary of Commerce claiming that the President’s Executive Order, which directed the Secretary of Commerce to seize privately owned steel mills, was not authorized by an act of Congress or by the Constitution. 343 U.S. at 583. The Government acknowledged that it failed to meet conditions necessary to invoke two statutes that would have authorized the Executive to take personal and real property under certain circumstances. Id. at 585-86. Instead, the Government invoked, as a defense, the President’s inherent authority under Article II, including the Take Care Clause, to act without statutory authority. Id. at 587. Thus, Youngstown’s use of the Take Care Clause obtains only in the rare circumstance where the President takes action concededly outside the authority conferred by statute and then relies solely on powers inherent in Article II as a defense to a claim that his order was ultra vires.

This isn’t accurate. While Youngstown was not a “Take Care” clause case, at its core, the Court, and Jackson, found that the President engaged in lawmaking. Why did the President engage in lawmaking? Because neither Congress nor the Constitution gave him the authority to seize the mills. He was no longer executing the law, but making the law. While Truman did not seek to rely on any statutory authority–basing his entire argument on inherent powers–Jackson’s entire framework looked to whether such congressional authority may exist. Here, Jackson provides the rule of decision to determine whether the President is acting according to law, or contrary to it.The same principle, Texas (and I) argue applies to DAPA. Jackson wasn’t simply deciding the case before him–he understood that his opinion would be cited in circumstances he could not anticipate (such as this one). I’m reminded of the final paragraph of Justice Scalia’s concurring/dissenting opinion in Noel Canning:

It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches — which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

The government’s position begs the question–they assume the President was acting according to statutory authority.

That is categorically different from the situation here, where the Secretary of Homeland Security has acted pursuant to a congressional mandate to prioritize enforcement resources and within the Executive Branch’s longstanding enforcement discretion under the immigration laws, Homeland Security Act, and other congressional enactments.

But that is the entire nature of the dispute. And Jackson’s tiers provides a path to resolve that query.

The government makes another unsuccessful effort to distinguish Youngstown–DAPA is not an executive order!.

Additionally, Plaintiffs here are not suing the President, nor are they challenging any action taken by him. Unlike Youngstown, there has been no Executive Order issued by the President; the only issue before the Court is whether the Secretary’s 2014 Deferred Action Guidance is lawful within the framework of the INA and other immigration laws.

As the USA Today noted, while President Obama may not have issued as many executive orders as his predecessors, he has issued a lot of executive memorandums. It doesn’t matter what you call it. What is being challenged is the President’s failure to faithfully execute the laws and to engage in actions contrary to the law.  During oral arguments in Brownsville, a Deputy Assistant Attorney General made this point. The judge was not persuaded. The DAAG quickly retreated, and said something like “well, maybe this is a distinction without a difference.”

After spending a few pages explaining why Youngstown is inapplicable, the government explains why DAPA is consistent with Justice Jackson’s concurring opinion (p. 18):

P. 18

In all events, Plaintiffs’ Take Care Clause claim – even were it cognizable – necessarily fails because Plaintiffs cannot demonstrate that the Executive acted contrary to the express command of the statutes Congress has enacted. As explained below, the Secretary’s actions are not foreclosed by statute, and, indeed, are consistent with recognized enforcement discretion under the immigration laws.

The OLC Memorandum’s discussion of Youngstown is consistent with the above points, as it cited the Jackson concurrence for the obvious point that, as a statutory matter, enforcement decisions have to be consonant with, rather than contrary to, congressional policies underlying the statute that the agency is charged with administering. OLC Op. at 6 (Defs.’ Ex. 2). The Secretary has not exceeded those limits here. Id. at 31.

Well, yes, that’s the question. Is DAPA “consonant with, rather than contrary to, congressional policies.” In Part I of my two-part series, I argue the answer to that question is no, contrary to the OLC memo’s superficial analysis.

By the way, the government didn’t even faithfully cite the take care clause:

The Take Care Clause vests discretionary authority directly in the President, not the Legislative or Judicial Branch, to take care that the laws are properly executed.

The word is “faithfully,” not “properly.” This is almost as bad as the Supreme Court’s replacement of the phrase “public use” in the 5th Amendment with “public purpose.”