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Unlike Justice Stevens, who has filled his retirement from acting status by writing books and railing against Justice Scalia, Justice Souter has continued to perform yeoman’s work through sitting by designation on the First Circuit. At this point, Souter has probably heard more cases on the First Circuit as an Associate Justice than he did during his brief five-month stint there from May to October of 1991. Yesterday, he authored the panel opinion in a fascinating case I have been following for some time.

The case involves Congregation Jeshuat Israel, which occupies the Touro Synagogue in Newport, Rhode Island (the same Synagogue that George Washington wrote to two centuries ago) and Congregation Shearith Israel in New York. Part of the dispute concerns the ownership of the rimonim, “a pair of finials with attached bells made of silver and gold and designed to surmount the shafts around which the Torah scrolls were rolled.” Specifically, the court had to determine whether the word “paraphernalia” in a contract written in 1903 embraced the remonim. To do so, Justice Souter employed an analysis that could only be described as originalist: how was the word understood at the time the document was drafted.

He explained:

Although the district court declined to read “paraphernalia” as encompassing rimonim, owing to a lack of affirmative evidence that the CJI signatories understood the term “paraphernalia” this way, we think no such specific evidence is necessary. Contracts are generally construed in accordance with the common understanding of their terms at the time of the agreement, and the common understanding in 1903 would have covered the rimonim associated with Touro under the term “paraphernalia.” See Paraphernalia, The Century Dictionary and Cyclopedia (1903) (“Personal ornaments or accessories of attire; trappings; equipments, especially such as are used on parade, or for ostentatious display, as the symbolic garments, ornaments, weapons, etc., used by freemasons or the like.”); Paraphernalia, Webster’s International Dictionary of the English Language (1900) (“Appendages; ornaments; finery; equipments.”); Paraphernalia, A Standard Dictionary of the English Language (1894) (“Miscellaneous articles of equipment or adornment; appendages; belongings; finery.”).

If “Contracts are generally construed in accordance with the common understanding of their terms at the time of the agreement,” why should the Constitution not be construed in the same way?

As Randy Barnett and I explain on the very first page of our new constitutional law casebook, “As with written contracts, to properly assess what the Constitution says, we must make ourselves aware of what it assumed.”

The final day of the Supreme Court’s term–June 26, 2017–unleashed a flurry of media interviews concerning the travel ban case, as well as the decision in Trinity Lutheran v. Comer. On Monday alone, I appeared on NPR’s All Things Considered, the BBC World Service, the Canadian Broadcasting Corporation, Bloomberg Law Radio, and many others. Following the Court’s decision in IRAP v. Trump, the press shifted to how the travel ban would be implemented.

Commentary

• Quick Decision on Health-Care Law, National Review (June 27, 2017).
• The Scope of the Supreme Court’s Decision in IRAP v. Trump, Lawfare (June 27, 2017).

Media

• Quoted in Trump applauds Supreme Court, feels ‘gratified’ by ruling to revive travel ban, Washington Times (June 26, 2017).

The justices, though, said the president deserves deference when acting on national security concerns in immigration matters, where Congress has given the executive branch significant leeway.

“The Supreme Court did what the lower court judges would not: treat President Trump like any other president with the ‘presumption of regularity,’” Josh Blackman, associate professor at South Texas College of Law in Houston, wrote on his blog. “The justices did not delve into the president’s Twitter account, nor did they parse his campaign statements.”

• Quoted in Supreme Court to hear case of Christian baker who refused to make cake for same-sex wedding, Washington Times (June 26, 2017).

The case had been on the Supreme Court’s list for potential cases since September, and the delay had prompted speculation about what was going on behind the scenes.

Josh Blackman, a law professor at South Texas College of Law, said he was surprised that the court decided to take up the case and predicted a huge impact next year.

“Something must have shifted. Maybe there are now votes to reverse,” he said.

• Quoted in Supreme Court gives Trump partial travel ban victory, Financial Times (June 26, 2017).
• Quoted in Houston reacts to Supreme Court decision on Trump’s travel ban, Houston Chronicle (June 26, 2017).

“This is a significant decision that I didn’t expect and most people didn’t expect,” said Josh Blackman, a constitutional law professor at South Texas College of Law-Houston. “This is a pretty big victory for the Trump Administration.”

Blackman, speaking on a conference call hosted by the conservative Federalist Society, added that he was surprised there were no dissents from Democratic appointees. He noted that, unlike the lower courts and appeals courts, the Supreme Court justices did not weigh Trump’s campaign rhetoric, Twitter posts and public interviews that lower-court judges said revealed a biased motive.

• Quoted in Trump gets green light for partial travel ban, The Hill (June 26, 2017).

Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and member of the conservative Federalist Society, said he’s comfortable calling the court’s decision a unanimous win for Trump.

“There’s no recorded dissent,” he said. “Justice [Sonia] Sotomayor is not afraid to dissent when she wants to. … If there were to be a dissent, there would be a dissent.”

Because the 90-day travel ban will expire before the court’s next term begins, Blackman said the court might ultimately decide to dismiss the case as moot and never hear Trump’s appeal.

• Quoted in Justice Gorsuch immediately asserts himself on right of Supreme Court, Washington Times (June 26, 2017).

In doing so, analysts said, he planted himself to the ideological right of Chief Justice John G. Roberts Jr. and seemed to align himself most frequently with Justice Thomas, the court’s most libertarian-leaning member.
“The guy’s not afraid to write,” said Josh Blackman, an associate professor at South Texas College of Law. “He’s not afraid to assert himself.” . . .

Mr. Blackman said that did a disservice to the justices, who bring their own developed judicial philosophies to the court.

Justice Gorsuch filled the seat of Justice Antonin Scalia, who passed away in February 2016. Some conservatives had hoped the new justice would also live up to the legacy of Scalia.

Mr. Blackman said it’s too early to say whether that would happen because Scalia had “such a gravity” on the court.

“We’re talking one of the top justices of all time,” he said.

• Quoted in Why The Supreme Court Travel Ban Ruling Is A Win For Trump, The Daily Caller (June 26, 2017).

South Texas College of Law Professor Josh Blackman took a different view. During a conference call organized by the Federalist Society, Blackman argued that, as a practical matter of policy, the ruling was a victory for the administration, regardless of the Court’s intentions . . . .

“At issue with the ban were specifically people who had zero connection to the United States,” he said. “Who is now allowed to be banned? People with zero connection to the United States. So what this decision basically does is codify the waiver, at least for this period, and allows the government to reject everyone else.”

“In that sense,” he added “this is a pretty significant victory for the Trump administration.”

Blackman also noted that the decisions of the 4th and 9th U.S. Circuit Courts of Appeals, which upheld injunctions blocking the order, will be vacated if the high court dismisses the case for mootness, a development many anticipate.

In effect, he argues, the Court could afford the president his travel ban, vacate the lower court rulings which stymied the administration, and never reach the merits of the case — on balance, a win for an embattled Trump White House.

• Cited in The Travel Ban in the Supreme Court: Crafting a Workable Remedy, Lawfare (June 26, 2017).
• Cited in SCOTUS Ruling On the Travel Ban Is A Win For President Trump – And A Loss For Activist Judges, Independent Journal Review (June 26, 2017).
• Cited in Why the Supreme Court is Allowing Trump’s Travel Ban to Go Into Effect, Roughly Explained (June 26, 2017).
• Guest on KRLD Radio 1080 AM Dallas, discussing the Supreme Court’s term (June 26, 2017).
• Guest on Breaking News, Canadian Broadcasting Corporation to discuss the travel ban (June 26, 2017) (Video).

• Guest on All Things Considered, National Public Radio, to discuss the travel ban case (June 26, 2017) (Audio).

• Guest on “To The Point,” KCRW Public Radio, to discuss the travel ban case (June 26, 2017) (Audio).

• Guest on Federalist Society Teleforum Podcast to discuss the travel ban case (June 26, 2017) (Audio).

• Guest on Bloomberg Law on Bloomberg Law Radio to discuss the Supreme Court’s term (June 26, 2017) (Audio).

• Guest on News, BBC World Service to discuss the Supreme Court’s term (June 26, 2017) (Audio).

• Guest on the Michael Berry Show to discuss the travel ban case, KTRH AM 740 Houston (June 26, 2017) (Audio).

• Guest on the Michael Berry Show to discuss Trinity Lutheran Church v. Comer, KTRH AM 740 Houston (June 26, 2017) (Audio).

• Guest on News, Fox 26 Houston to discuss Supreme Court’s travel ban ruling (June 26, 2017) (Video).

• Guest on The Sam Walker Show, BBC Radio 5 to discuss the Supreme Court’s term (June 26, 2017) (Audio).

• Guest on WWL First News with Tommy Tucker to discuss the Supreme Court’s term (June 27, 2017) (Audio).

• Guest on WBAL News Now with Bryan Nehman to discuss the Supreme Court’s term (June 27, 2017) (Audio).

• Cited in Breaking Down the Senate Health-Care Bill, Supreme Court Rulings, National Review (June 27, 2017).
• Quoted in Praise, Criticism Of Supreme Court Decision On Temporary Travel Ban Newburgh Gazette, Newburgh Gazette (June 27, 2017).

All sides recognized Monday’s ruling – and its lack of comment on the lower courts’ findings of religious bias – as “a pretty big victory for the Trump administration”, said Josh Blackman, a constitutional law professor at South Texas College of Law-Houston.

• Quoted in Supreme Court on Trump’s travel ban: Why its tone sounds a bit different, Christian Science Monitor (June, 27, 2017).

“They dialed down the temperature a few notches,” says Josh Blackman, an associate professor at the South Texas College of Law who specializes in constitutional jurisprudence.

…

To some extent, these judges responded in kind. In May, the US Court of Appeals for the Fourth Circuit had harsh words for the president, saying his then-newly revised order “drips with religious intolerance, animus and discrimination.”

That statement is “a bit over the top,” says Professor Blackman.

Campaign statements are of necessity an exaggerated form of speech, and they haven’t before entered into a court’s consideration of presidential intentions, Blackman says. The Supreme Court recognizes this, and nowhere cited Trump’s tweets or irregular speech. They returned to what Blackman calls a “presumption of regularity”: this president is like any other. He won’t be treated as a unique danger who demands a unique approach to the law.

• Quoted in US imposes modified travel ban, Financial Times (June 27, 2017).
• Guest on 710 KURV McAllen to discuss the Supreme Court’s Term (June 27, 2017). (Audio).

• Quoted in DC tries to read the tea leaves on whether Kennedy will retire from Supreme Court, Washington Examiner (June 30, 2017).

One former clerk who could play a large role in Kennedy’s calculus regarding whether to retire is new Justice Neil Gorsuch.

Josh Blackman, a South Texas College of Law professor, said the jury is still out about how Gorsuch’s presence could affect Kennedy’s thinking about leaving.

“On the one hand, President Trump’s nomination of a former Kennedy clerk should assuage concerns that Justice Kennedy may have about who will replace him,” Blackman said. “On the other hand, Justice Gorsuch’s conservative approach to date — perhaps more conservative than Justice Scalia’s — could give Justice Kennedy pause about letting a Republican nominate his successor.”

• Guest on Houston Matters, Houston Public Media to discuss Supreme Court’s term (June 30, 2017) (Audio).

• Guest on Houston Public Media to discuss Texas Supreme Court’s decision in Pidgeon v. Turner (June 30, 2017) (Audio).

In my article Presidential Maladministration, forthcoming in the Illinois Law Review, I discuss the concept of the “presidential reversal”: that is, the executive branch changes its position, merely because a new President is elected with new priorities. Such changes should give the courts pause before applying the normal cannons of deference.

Recently, the Solicitor General’s official switched sides in a pending case, NLRB v. Murphy Oil. In September 2016, the Obama administration petitioned for a writ of certiorari in a case involving arbitration agreements. Certiorari was granted in January 2017. Last week, the Solicitor General officially switched sides, filing an amicus brief in support of the petitioners in two of the dockets. The government was remarkably candid in explaining why  it reversed its prior position: the “change in administration.”

In Murphy Oil, this Office previously filed a petition for a writ of certiorari on behalf of the NLRB, defend- ing the Board’s view that agreements of the sort at issue here are unenforceable. After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion. Although the Board’s interpretation of ambiguous NLRA language is ordinarily entitled to judicial deference, courts do not defer to the Board’s conclusion as to the interplay between the NLRA and other federal statutes. We do not believe that the Board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.

Why was the SG so blunt here? As I discuss in my paper, the Obama administration was on several occasions rebuked during oral arguments after switching positions from that of the Bush administration “upon further reflection.”

Justice Scalia hd fun with SG Verrilli in Kiobel v. Royal Dutch Petroleum, but the Chief was not amused.

Justice Scalia, once again interrupted the Solicitor General. “It was the responsibility of your predecessors as well, and they took a different position. So why should we defer to the views of the current administration?” With a dash of humor, Verrilli answered, “because we think they are persuasive, Your Honor.” Over laughter, Scalia answered, “Oh, okay.” Chief Justice Roberts was not persuaded. Reaffirming Scalia’s position, Roberts warned, “whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.” Ultimately, agreeing with the government’s new position, the Court determined that “Attorney General Bradford’s opinion defies a definitive reading and we need not adopt one here.” However, no deference was granted to the reversal.

The Chief’s anger boiled over during US Airways v. McCutchen.

During oral arguments [in US Airways, Inc. v. McCutchen], Chief Justice Roberts criticized Deputy Solicitor General Joseph R. Palmore about this reversal. “The position that the United States is advancing today,” Roberts said, “is different from the position that the United States previously advanced.” The Chief, with a tinge of annoyance in his voice said “further reflection” was “not the reason” why the position change. He added for emphasis, “it wasn’t further reflection.” Roberts, who had served in the Reagan and Bush administrations decades ago, asked rhetorically whether the real reason was that “we have a new secretary now under a new administration, right?” Palmore attempted to answer, “We do have a new secretary under a new administration,” but Roberts interrupted him. “It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change.”

Kiobel, Levin, and McCutchen, each raising the same issue, were argued during a span of four months. Sensing a disquieting trend, Chief Justice Roberts sent a message of sorts to the Obama administration: “We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.” Palmore responded that since the earlier brief was filed, the “law has changed.” The Chief Justice replied, “Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the [new] secretary is now of the view. I found that a little disingenuous.” The Chief openly rebuked the Solicitor General’s office for using this malapropism to justify maladministration.  Supreme Court advocate Roy Englert Jr., who worked in the Solicitor General’s office, observed that Chief Justice Roberts was “making a broader point” with his criticism, referring to the recent string of cases where the Obama administration had reversed prior positions.

I suspect this candor is directly attributable to the Chief’s reprimand five years ago.

As I discuss in my paper, such reversals should give the courts pause before affording the new position the traditional deference it would otherwise be due.

The first species of presidential maladministration is by far the most commonplace: when the incumbent administration abandons a previous administration’s interpretation of a statute. Every four-to-eight years, to comply with the new President’s regulatory philosophy, political appointees in agencies alter certain interpretations of the law—often with direction from the top. These changes are not always implemented through the formal notice-and-comment process, but rather can be manifested through informal opinion letters, guidance documents, and even legal briefs. Regardless of their form, these presidential reversals are the ultimate, and clearest forms of commander-in-chief nudging to the administrative state.

There is nothing nefarious when a new administration disagrees with a previous administration. Indeed, it is quite natural that presidents see things differently. The only question that remains is how should courts treat this reversal. Outside of Chevron’s framework, the Supreme Court has maintained that presidential reversals are “entitled to considerably less deference.”  In recent years, the Roberts Court—led by the Chief Justice himself—has faulted the Solicitor General’s abandonment of earlier positions “upon further reflection.” However, within the cozy confines of “Chevron’s domain,”  old interpretations of ambiguous statutes are not chiseled in stone, so “sharp break[s] with prior interpretations” do not weaken deference.  Both blends of reversals are policy decisions all the way down, and should give courts pause that the newly-minted interpretation is any more reasonable than the abandoned on.

Or, the Court could DIG the case.

Tomorrow, I will have a piece on Lawfare about how the Court’s recent decision in Sessions v. Morales-Santana could impact the travel ban litigation. Beyond my errant tea-leaves-reading, there were two other noteworthy constitutional developments in the case.

First, without any fanfare, Chief Justice Roberts joined the section of Justice Ginsburg’s opinion where she reaffirmed Obergefell (Justices Thomas and Alito did not join this part of the opinion, and Justice Gorsuch did not participate). RBG wrote:

Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality … that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (slip op., at 20).

Second, in a footnote, the Court (perhaps) inadvertently weighed in on the question of whether Ted Cruz was eligible to be President:

When a child is born abroad to married parents, both U. S. citizens, the child ranks as a U. S. citizen at birth if either parent “has had a residence in the United States or one of its outlying possessions, prior to the birth of [the child].” §1401(a)(3) (1958 ed.); §1401(c) (2012 ed.) (same).

This was Cruz’s argument as to why he is a natural born citizen–he was a “U.S. citizen at birth,” though born abroad, because his parents were married, and they had residence in the United States prior to the child’s birth. This footnote was entirely unnecessary to the Court’s analysis. Perhaps it was smuggled in to address the natural born citizen question going forward?

President Obama’s two executive actions on immigrations have taken more twists and turns than I could have ever fathomed.

In November 2014, shortly after the midterm elections, President Obama announced that within 90 days, his administration would implement DAPA. This policy would grant “lawful presence” to, and defer the deportation of, roughly four million parents of U.S. citizens and lawful permanent residents. Within two weeks, Texas Attorney General (and now Governor) Greg Abbott filed suit in the Southern District of Texas in Brownsville, seeking a nationwide injunction to bar enforcement of DAPA. (I filed an Amicus Brief on behalf of the Cato Institute in support of that case, based on my work on the Take Care Clause). The district court entered the injunction, and the 5th Circuit denied a stay. Rather than seeking an emergency stay in the Supreme Court, the government went back to the 5th Circuit for a ruling on the merits. Again, the government lost, and quickly filed a petition for certiorari. It was granted with 9 Justices on the bench, but argued with only 8. At the end of the tumultuous October 2015 Term, the Court affirmed the 5th Circuit by a 4-4 margin. (Justice Scalia would almost certainly have cast the 5th vote to strike down the policy).

That decision gave Texas a victory, but one that I anticipated would be temporary. Immigrant rights groups soon filed suits in other districts, trying to gin up a circuit split about DAPA, with the hope to get it back to the Supreme Court where a 9th Justice, appointed by President Hillary Clinton, would be in a position to uphold the policy. That is certainly what I expected to happen. I viewed the 4-4 affirmance as merely delaying the inevitable. But then November 8 happened. Donald J. Trump won the election. And, in one of this first acts, appointed Neil Gorsuch as the 9th Justice. Were DAPA to get back to the Supreme Court, it would not likely find a 5th vote for its survival. But the policy would never see a judicial resolution again.

On January 19, 2017, the outgoing Obama Administration and now-Texas AG Ken Paxton asked the District Court in Brownsville for more time to consider the litigation. In March, the parties asked for more time. The court agreed, setting a June 15 deadline. I had that date marked off on my calendar. I suspected that the parties would simply punt again, asking for more time. Much to my surprise, late Thursday night, I received an ECF notification from the case, indicating that DAPA had been revoked! I was shocked, even though I knew this was coming, eventually.

It was at bottom a aictory for Texas! Their timely lawsuit prevented a lawless policy from ever going into effect. And due to the confluence of political outcomes that were completely unimaginable in 2014, it will never go into effect. Nevertheless, the victory was bittersweet. My hope was that the Trump Administration would not only revoke DAPA, but announce that it was illegal, as all the GOP candidates would say over and over and over again, referring to it (erroneously) as “illegal executive amnesty.” The 2014 DAPA OLC Opinion should have been tossed to DOJ’s ash heap. Secretary Kelly’s memo, however, came far, far short of that, offering these reasons for revocation:

I have considered a number of factors, including the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities. After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum.

To paraphrase T.S. Elliott, this is the way DAPA ends. Not with a bang, but a whimper.

Why did the government not announce that DAPA was illegal? Because, in another unexpected twist and turn, President Trump has decided to keep DACA on the books. DACA is the President’s 2012 executive action that deferred the deportations of, and granted work authorization (but not “lawful presence”) to about two million “Dreamers.” From press accounts, President Trump feels sympathy for the Dreamers, and does not want to harm them. If that is truly his belief, then the President should support the Dream Act, and grant these worthy individuals permanent legal status. This is a legislative proposal that I have always supported, wholeheartedly. Instead, the President and his administration have continued to implement this lawless policy. And, as I’ve noted may times over the past few years, DACA is even more lawless than DAPA. While DAPA requires that the applicant be the parent of a U.S. Citizen, DACA does not require any familial relation to a U.S. Citizen. A cryptic footnote in the OLC opinion announcing DAPA referenced the unique humanitarian concerns attending to the Dreamers. Nonetheless, as far as immigration law works, the case for deferred action is even weaker for those without any connection to citizens. So here we are.

President Trump has eliminated DAPA, a policy that never went into effect because of Texas’s lawsuit, but has not revoked DACA, a policy that is less defensible from a legal perspective. Moreover, not only has the President not revoked DAPA, he has continued to issue new licenses at roughly the same rate as his predecessor! This outcome is something I could have never conceived of during the campaign.

Though the litigation over DAPA will soon wind to an end, the litigation over DACA continues. On June 22, the Supreme Court will consider at conference Arizona’s petition for certiorari in Brewer v. Arizona Dream Act Coalition. (Yes, the same conference when the Court will consider IRAP v. Trump and Hawaii v. Trump). This case was not a direct challenge to DACA, but instead arose after Arizona passed a law to bar DACA recipients from receiving drivers licenses. The 9th Circuit held that President Obama’s non-enforcement policy preempts state law.

As Arizona explains its petition for certiorari, a discretionary policy announced in an executive-branch memo cannot preempt state law under the Supremacy Clause:

A discretionary, revocable program of non- enforcement, which was created by executive action alone, cannot preempt state law regulating driver’s licenses. Even the Ninth Circuit acknowledges that granting licenses is a traditional police power. App. 36. Where police powers are involved, this Court requires that Congress supply “clear and manifest” evidence of its intent to preempt state law. Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 330 (1947)). The two statutory provisions identified by the Ninth Circuit as evidence of congressional intent are inadequate, which explains why that court rejected the “clear and manifest” standard entirely. App. 35; see also App. 6 (Kozinski, J., dissenting). The Ninth Circuit’s rejection of the “clear and manifest” standard is a departure from 70 years of this Court’s preemption jurisprudence. To protect the sovereignty of the States, this Court should grant review.

Additionally, the Ninth Circuit never explains how the DACA program can be federal law. The Constitution assigns authority over immigration to Congress. U.S. Const. art. I, § 8, cl. 4. Unlike the demanding test for preemption, the separation of powers requires only that Congress has exercised its Article I authority to regulate immigration—including sanctioning certain types of deferred action and assigning them unique EADs—to strip the President of power to create new law in this area. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The separation of powers thus forecloses any argument that the DACA Memo or EADs issued under DACA carry the force of law for purposes of the Supremacy Clause. Alden v. Maine, 527 U.S. 706, 731 (1999) (“[T]he Supremacy Clause enshrines as ‘the supreme Law of the Land’ only those Federal Acts that accord with the constitutional design.”).

Texas filed an amicus brief on behalf of a number of other states, stating the far more important proposition: because DACA is illegal, it cannot possibly preempt state law. This argument largely piggybacks on Texas’s successful argument to the 5th Circuit concerning DAPA’s legality. State SG Keller explains:

DACA, or “Deferred Action for Childhood Arri- vals,” is unlawful. It thus cannot be part of the “supreme Law of the Land” preempting state laws. U.S. Const. art. VI, cl. 2. DACA is unlawful executive action for essentially the same reasons that a materially identical executive action expanding DACA has been held unlawful—it affirmatively grants lawful presence and work authorization in violation of Congress’s intricate statutory framework for determining when an alien may lawfully be present and work in the country. Tex- as, 809 F.3d at 146. The Ninth Circuit erred by effectively giving preemptive force to this unlawful executive action.

The chief defense of DACA has been that it is allegedly mere enforcement discretion—forbearing from de- porting certain aliens. See Pet. App. 44, 46 (C.A. amended op.); Pet. App. 190-91 (Office of Legal Counsel (OLC) memo); Pet. App. 197 (DACA memo); see also Texas, 809 F.3d at 174-78. That is wrong. “Lawful presence” is an immigration classification created by Congress with significant consequences. Likewise, Congress authorized only certain classes of aliens for work authorization. Yet DACA deems hundreds of thousands of unlawfully present aliens as lawfully present and eligible for work authorization. See Pet. App. 199 (DACA memo); infra Part I.A-I.B. This affirmative change in classification far exceeds enforcement discretion.

Texas is exactly right. An illegal policy cannot preempt state law. To determine if there is preemption, courts must first pass on the lawfulness of the memo. One small quibble: the DACA memorandum does not bestow “lawful presence,” but subsequent FAQ documents from DHS indicated that it does. Secretary Kelly’s memo, however, does reaffirm that an individual’s DACA can be rescinded at any time.

I have long hoped that the Supreme Court calls for the views of the Solicitor General on this case. The government should assert, once and for all, that an executive-branch memorandum (of dubious legality) can preempt state law. This will put the SG’s office in a tight spot, but I’m sure they’ll find a way to duck the issue. (Much like with the CVSG concerning President Obama’s non-enforcement of controlled substance laws).

There is another case that implicates DACA’s legality arising out of state court. Last week, the Iowa Supreme Court divided 4-3, holding that a DACA recipient cannot be “prosecuted by State authorities for using false documents to obtain federal employment authorization even though federal law pervasively regulates employment of undocumented noncitizens.”

The AP describes the facts:

Martha Martinez, who is now 31, obtained an Iowa driver’s license when she was 17 using a birth certificate and Social Security card borrowed from a woman named Diana Castaneda. She also used the fake credentials to obtain federal authorization to get a job in Muscatine at a company that provides sanitation services for food processing plants.

Martinez in 2013 received temporary lawful immigration status under the Deferred Action for Childhood Arrivals policy implemented under President Barack Obama. She was able to obtain a driver’s license under her real name and newly issued Social Security number provided through DACA.

However, the Iowa Department of Transportation, using facial recognition software, matched her face with the driver’s license she obtained at 17 using Castaneda’s credentials. After an investigation, Muscatine County Attorney Alan Ostergren charged her with the two felonies that upon conviction could get her deported.

This case presents similar issues to the Arizona Dream Act case: can a non-enforcement memorandum preempt state law? The majority observes:

Martinez filed a motion to dismiss. Citing Arizona v. United States, Martinez argued that federal law preempted her prosecution under the Iowa identity theft and forgery statutes, both on their face and as applied. 567 U.S. 387, ___, 132 S. Ct. 2492, 2510 (2012). The State resisted. The State distinguished Arizona, noting that in that case, the Arizona statute specifically criminalized failure to comply with federal alien registration requirements while the statutes under which Martinez was charged are independent of federal law. The district court denied the motion to dismiss. According to the court, the charges of identity theft and forgery were “state crimes independent of Defendant’s immigration status.” In prosecuting Martinez, the court stated, the State was not acting to enforce or attack federal immigration law. Therefore, Martinez’s prosecution was not preempted by federal law.

The majority specifically referenced the risks that DACA recipients face:

Further, Martinez stepped forward as part of a federal program, DACA. She provided relevant immigration authorities with information and was granted deferred status. Federal authorities might blanch at prosecuting a person who in good faith responded to their invitation to come out of the shadows for deferred action. See Brewer, 757 F.3d at 1063 (citing the practical effect of Arizona policy being DACA recipients were barred from working).

The state prosecutor in this case, however, seems to have a different philosophy and, as reflected in the charging decision to seek Martinez’s conviction on two felonies, exposed her to a significant Iowa prison term and removal from the country. If such local exercise of prosecutorial discretion were permitted, the harmonious system of federal immigration law related to unauthorized employment would literally be destroyed.

Justice Mansfield (who was on President Trump’s short list) dissented, jointed by two others, concluding that there was no preemption.

Although the majority tries to justify its decision based on field preemption and conflict preemption, neither doctrine can sustain its ruling. In the critical part of the majority opinion (i.e., the end of it where the actual legal analysis occurs), my colleagues quote cases out of context and paraphrase cases as saying things they don’t actually say.

More importantly, Justice Mansfield picked up on Judge Kozinski’s dissental in the Arizona Dream Act case– a non-enforcement memorandum does not constitute the “Supreme Law of the Land” under Article IV:

To put today’s decision into context, it is helpful to compare it to a recent decision of the United States Court of Appeals for the Ninth Circuit. Recently, the Ninth Circuit held that Arizona’s policy of denying drivers’ licenses to all persons protected by the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program was preempted by federal law. See Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 917 (9th Cir. 2016), amended by 855 F.3d 957 (9th Cir. 2017), petition for cert. filed, 85 U.S.L.W. 3471 (U.S. Mar. 29, 2017) (No. 16–1180). This has sparked disagreement. Dissenting from the denial of rehearing en banc, six judges of that court noted that DACA had not been approved by Congress but was just the President’s “commitment not to deport.” Ariz. Dream Act Coal., 855 F.3d at 958 (Kozinski, J., dissenting from the denial of rehearing en banc). They asked, “Does the Supremacy Clause nevertheless force Arizona to issue drivers’ licenses to the recipients of the President’s largesse?” Id. They characterized the Ninth Circuit panel opinion as relying on a “puzzling new preemption theory.” Id.

Mansfield notes that his colleagues’ decision goes much further than does the 9th Circuit, in that it finds preemption because the federal government has declined to prosecute someone for forgery:

Today’s decision goes much farther than that “puzzling” Ninth Circuit decision. Instead of giving the benefits of preemption to people whom the Obama Administration affirmatively exercised its discretion to protect, as the Ninth Circuit did in Arizona Dream Act Coalition, the court today gives the benefits of preemption to someone on whose behalf the Obama Administration declined to exercise its discretion—namely, a person who has committed identity fraud and forgery.

Thus, under DACA, state-law convictions for identity theft or forgery are disqualifying. Yet if the Department of Homeland Security did not believe state-law identity theft or forgery charges should prevent an unauthorized alien who arrived as a child from remaining in this country, it could have easily so provided in DACA. It did not. The court thus constructs a preemption theory today on behalf of someone whom the federal executive branch exercised its discretion to decline to protect.

…

Simply stated, the majority’s approach is not preemption under any cognizable legal doctrine. It is not field preemption. It is not conflict preemption. It is, at best, gestalt preemption.3

3In explaining the court’s theory of preemption, the first special concurrence analogizes this case to “state laws that indirectly interfere with the right to vote.” Such an analogy is off the mark. Citizens have a constitutional right to vote. Unauthorized aliens do not have a constitutional right to work in the United States under a false name.

I have heard mixed things about the Iowa AG seeking review in the Supreme Court. Perversely, under the present circumstances, liberals should be eager to have the Supreme Court hold that the President’s executive order cannot preempt state law. Such a decision would be very useful in the Sanctuary City context. Yes, federalism, goes both ways. In any event, if this case is appealed to the Supreme Court, the Justices would have another opportunity to review the legality of this program, which, has persisted far longer than I could have ever expected in a Trump Administration.