U.S. v. Texas: Takeaways From Oral Argument at #SCOTUS

I had the privilege of attending today’s oral argument in U.S. v. Texas.  Here are my initial takeaways:

What we saw today was the Republicans trying to litigate a political dispute at the Supreme Court. The Republican plaintiffs simply do not have an addressable legal claim.

As expected, Chief Justice Roberts peppered the Obama Administration with tough questions. However, given the Chief Justice’s rigorous views on standing and his lamentations about the growing perception of a politicized Court, U.S. v Texas is precisely the type of dispute that Chief Roberts seems to want settled in the political branches and not in the judiciary. In fact, the Chief Justice’s almost singular focus on standing today – in particular when he asked whether Texas’s alleged injury was more indirect and speculative than in the Massachusetts v EPA case – suggests that, true to his well-articulated past opinions, Roberts is seriously questioning Republicans’ ability to bring this case.

This case remains about Republicans’ policy disagreement with the president, not about the law.

On the merits, the Republican plaintiffs conceded that Obama had the authority to temporarily defer the removal of undocumented parents and Dreamers. As Justice Kagan pointed out, the Republican plaintiffs’ “gripe” is with letting undocumented people work, support their families and live in this country with dignity in the process.

This underscores the anti-immigrant motivation behind the case and reminds us that a political lawsuit should be settled at the ballot box, not the Supreme Court.


READ->Obama Admin Reply to the GOP in US v Texas

Read a the Obama Administration’s Reply to Texas –> HERE

ICYMI:“Preventing Supreme Chaos: It’s Up To The Chief”

2016-04-08 SCOTUS

Image via Flickr (islespunkfan)

By America’s Voice Press Releases

En español aquí

David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association, has published his latest in a series of must-read assessments of the key questions, considerations, and implications of the U.S. v Texas immigration executive action case, to be heard before the U.S. Supreme Court on April 18.

After predicting that the Republican plaintiffs’ case will be dismissed on standing, Leopold’s new analysis on Medium, “Preventing Supreme Chaos: It’s Up To The Chief,” explores the potential consequences and chaos that would result from a 4-4 split in the Supreme Court.

Read David Leopold’s new Medium piece, “Preventing Supreme Chaos: It’s Up To The Chief,” below or online here:

“Given that the Republican plaintiffs fail to demonstrate standing, the U.S. Supreme Court should dismiss the overtly political lawsuit brought by Republican leaders from Texas and 25 other states when it hears the United States v Texas immigration executive action case on April 18. While remaining confident that the Republican challengers will fail on standing (and would fail on the merits of the case, as well), it is worth exploring the potential consequences and chaos that would result from an alternate scenario.

A 4–4 split in U.S. v Texas, for example, would result in three levels of profound chaos ensuing. A 4–4 split on the Supreme Court would: provide a green light to Republican-controlled states — not the federal government — to determine the nation’s immigration enforcement policy — contradicting the Court’s major precedent in the process; open the door to a myriad of politically-charged lawsuits that states would be newly empowered to bring against sitting presidents; and raise questions about whether the injunction placed on the deportation deferral guidance, known as DAPA and DACA+, should continue to apply across country, ultimately leading to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S.

Since the death of the late Justice Antonin Scalia — and the refusal of Senate Republicans to even consider hearings for his replacement — there’s been a lot of discussion about what the vacancy holds for key cases before the Court. Thus far, the Court has evenly split among the justices 4–4 on two cases, leaving the decision of the lower court intact in Freidrichs v. California Teachers Association, by simply stating, “The judgment is affirmed by an equally divided Court.”

Justice Elena Kagan spoke recently at the New York University Law School about the situation of the Supreme Court in the aftermath of Justice Scalia’s sudden death. According to a report in the New York Times, Kagan said she and her colleagues “were committed to issuing decisions in as many of those cases as possible.” The justice spoke highly of the efforts of Chief Justice Roberts, saying, “I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now,” Kagan said. “He’s conveyed that in both his words and his deeds.”

On April 18, the Supreme Court will provide another test for Chief Justice Roberts and the associate justices when they hear arguments in United States v. Texas. If Chief Justice Roberts stands by his long-held rigorous views on standing, the case should be dismissed, because it asks the Court to weigh in on a political dispute, not a legal claim.

Frankly, if there ever was a political question before the Court, it’s this case, as numerous legal analysts and law professors have pointed out. But, if the Court evenly divides 4–4 among the eight sitting justices, the decision of the lower courts will remain in place — as it did in the Friedrichs case — with a profound impact on the nation.

One can imagine three levels of chaos ensuing:

First, by affirming the hold on DAPA and DACA+ through indecision, the Supreme Court will have permitted Republican controlled states — not the federal government — to determine the nation’s immigration enforcement policy. This would flatly contradict the Court’s major precedent decisions, including U.S. v. Arizona. In Arizona, the Court, speaking through Justice Anthony Kennedy, made clear that the federal government, not the states, are constitutionally vested with the authority to set immigration policy:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Stephen Legomsky, Professor Emeritus at Washington University School of Law and former Chief Counsel of U.S. Citizenship and Immigration Service, wrote in a post titled, Supreme Court Immigration Case Will Have Profound Impact that:

It is that combination — a lax threshold for state standing to sue the federal government and the states’ freedom to choose a friendly judicial forum for deciding both standing and the merits of the case — that makes Texas’s theory so dangerous.

Second, a split decision by the Court would have adverse ramifications well beyond immigration enforcement policy. One can only imagine the myriad of politically charged lawsuits states will be newly empowered to bring against the political decisions of a sitting president — Republican or Democrat — including challenges to his or her tax, environmental and foreign policies.

As former Solicitor General Walter Dellinger explained to the Supreme Court in an amicus brief filed in opposition to the Texas Republican challenge to DAPA and DACA+:

The dispute accordingly presents only “questions and issues” (Winn, 563 U.S. at 132) that must be left to the political process.

To [fail to dismiss the case on standing] would not only inject the Court into this political maelstrom, but also the next one, and the next. For the theory of standing advanced by respondents here would not be good for this case only. If adopted, it would open wide a back door to federal court for States seeking resolution of a host of politically charged disputes where the front door to individual plaintiffs has been barred by this Court’s precedents. Respondents’ novel theory of APA review would likewise place the courts in a supervisory status over a wide range of discretionary executive decisions, without any meaningful standards for evaluating them. 


Respondents’ theory of standing would not only provide a basis for States to challenge myriad federal immigration decisions, see Pet. Br. 31, but it would also provide a ready work-around in many other cases where courts have found that individual plaintiffs lacked standing. By following the path laid out by respondents here, States could effectively step into those individual plaintiffs’ shoes and litigate policy disputes with the federal government. That would turn standing doctrine on its head.

Allowing U.S. v Texas to remain in the federal courts would allow Republican Governors and Attorneys General of 26 states to undermine the federal government’s “significant power to regulate immigration” of which Kennedy wrote. Political questions would become fodder for the courts, not the legislatures where they belong.

Again, Legomsky:

All this transcends immigration. Every time the IRS interprets the tax code in a way that favors the taxpayer, any state that chooses to base its own income tax on federal taxable income loses revenue. The state could avoid that result by changing its law, but under Texas’s theory that doesn’t matter… Accepting Texas’s radical theory of standing would be a recipe for paralysis. No one state should be empowered to thwart the federal government’s nationwide policy decisions so easily. And that is why the consequences of the Court’s final disposition will be so profound.

At The New Republic, Spencer Amdur made a similar point:

To contest a government policy in court, plaintiffs must show an “injury in fact,” which means that they are personally harmed by the policy; it is not enough to simply disapprove from a distance. This requirement is known as “standing.” In the DAPA lawsuit, both lower courts ruled that Texas had standing, but they relied on a curious theory: Because Texas subsidizes driver’s licenses for immigrants with deferred action, it will now have more licenses to subsidize. The problem with that logic is that it would allow any state to create standing, simply by tying its laws to federal policy.

The standing question is crucial for a few reasons. It’s one that is likely to appeal to the Court’s conservatives, who generally favor tighter standing requirements. It would also save the Court from having to sort through some knotty issues of administrative and constitutional law. More broadly, a generous ruling in favor of state standing could exacerbate the dysfunction that has plagued the immigration system in recent years. If Texas has standing in this case, then states might have standing to challenge almost any policy that loosens enforcement, or gives someone lawful status. (See, for example, Texas’s lawsuit to block Syrian refugees.)

At SCOTUSblog, Kevin Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at U.C. Davis School of Law, offered a similar analysis:

If the Court finds that Texas has standing to challenge DAPA, one could also anticipate efforts by the states for partisan political reasons to employ lawsuits in the federal court to interfere with the executive branch in its discretionary judgments about how to enforce myriad laws — from the Internal Revenue Code to the environmental laws — passed by Congress.

And, that would, of course, result in countless lawsuits that would never have been filed or considered otherwise.

Finally, indecision by the Supreme Court would raise legitimate questions about whether the injunction placed on DAPA and DACA+ by Judge Hanen should continue to apply across country. No doubt there would be challenges by states such as California and Washington, which have refused to join the Republican lawsuit against Mr. Obama’s immigration executive action and persuasively argued that they’ve been harmed by the hold placed on DAPA and DACA+; no doubt federal courts outside the 5th circuit would be prevailed upon to lift Hanen’s injunction so the president’s temporary deportation deferral could move forward in other jurisdictions; and no doubt a 4–4 split by the Supreme Court would lead to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S. — a situation the Supreme Court wisely prevented through its Arizona decision.

Noah Feldman, professor of constitutional and international law at Harvard University, outlined the legal questions which would arise in the aftermath an evenly divided Supreme Court in the Republicans’ Texas lawsuit:

The 5th Circuit opinion won’t be binding precedent on other courts or future presidents. The long-term effect on executive action relating to immigration won’t be significant.

In practice, Obama’s plan might not be implemented. But even that’s not absolutely certain, at least outside Texas. It was very unusual for the 5th Circuit to issue an injunction binding the Obama administration nationally.

There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.

That “legitimate technical question” would immediately be the subject of numerous lawsuits in states outside of the Fifth Circuit. In fact, many governors and attorneys general, have tried repeatedly to allow implementation of DAPA in their states, citing the economic value. At SCOTUSblog, Anne Egeler, Deputy Solicitor General for the State of Washington, wrote,

The nationwide injunction is preventing the states and their residents from receiving the substantial economic, public safety, and humanitarian benefits that will flow from the president’s immigration actions.

In its amicus brief, the State of California made a powerful case about the harm done to the state by blocking DAPA:

As a result, California’s economic growth has depended to a significant degree on undocumented workers. California’s agriculture and extraction industries employ 3.6 immigrants for every one native worker, compared to a national industry average of 1.5 immigrants per native worker. Undocumented immigrants, representing just 7% of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers according to one estimate. Other estimates place these figures even higher: the proportion of California farm workers who are undocumented, for instance, may be closer to 60%. Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) — an amount larger than the entire respective GDPs of 19 other States.

That alone would likely compel California to seek redress if the injunction is limited to the Fifth Circuit because of an evenly split Supreme Court.

At Think Progress, Justice Editor Ian Millhiser surmised what could follow:

In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4–4 in the Texas case, the Fifth Circuit’s order will stand.

Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.

Needless to say, things could get complicated. No doubt the legitimacy of Hanen’s “national injunction” would be challenged by governors and attorneys general, along with immigrant advocates, who will head to federal courts to allow implementation of DAPA. In Writing at Across the Bar, a publication of the San Joaquin County (CA) Bar Association, attorney Fernanda Pereira summed up the confusion that would unfold in the aftermath of a 4–4 split decision by the Supreme Court:

Critically, any opinion issued by the Supreme Court would not be precedent-setting; rather, the Fifth Circuit’s order will stand, but only be binding precedent in the Fifth Circuit — Louisiana, Mississippi, and Texas. If that happens, the Justice Department may obtain an order from a different circuit upholding the President’s authority to implement DAPA and DACA. The Fifth Circuit is among the most conservative courts in the country and it is unlikely that every circuit will follow its lead. There will be competing court orders holding DAPA and DACA both legal and illegal, and no immediate possibility of Supreme Court review. It is not immediately clear what happens in such a case. 

Pereira also explained the potential human cost:

If the Court’s decision is split 4–4, that would have tremendous consequences for people facing deportation. Immigrants would be treated differently under the law because of where they reside, meaning that established families (which include U.S. citizen spouses and children) will be forced to choose to relocate to jurisdictions that will grant them access to the DAPA and expanded DACA deferred action programs, or fracture.

If Texas is granted standing, that’s the immediate future. It will upend the lives of immigrants across the country and cause a rush to the courts — by states who want to challenge federal actions beyond immigration and by advocates, states and cities who want DAPA implemented in their jurisdictions.

From all indications, chaos is anathema to Chief Justice Roberts. As USA Today’s Richard Wolf noted,

Over the years, the chief justice has consistently voted to close the courthouse doors on claims and claimants he judged to be dubious. 

The dubious lawsuit brought by the 26 Republican governors and attorneys general is perhaps the most important test for Roberts in this term.

A 4–4 tie in U.S. v. Texas, a blatantly political lawsuit, guarantees at least three levels of judicial chaos. Whether or not that happens rests with Chief Justice and the rest of the Supreme Court.”

When Your Argument Is Wrong as a Matter of Law: The Texas Immigration Response

2016-03-29 SCOTUS

Image via Flickr (bufflehead)

Available in Spanish here.

The lawyers for 26 GOP Governors and Attorneys General, led by Texas Attorney General Ken Paxton, filed their response brief in the case challenging President Obama’s executive actions on immigration. Like everything else about this case, the brief is politically motivated and filled with confusion and obfuscation.  Quite frankly, and I don’t say this lightly, I believe that portions of the brief push the envelope on an attorney’s obligation of candor toward the tribunal.  

The Texas strategy appears to rely on the Justices of the Supreme Court not knowing or understanding the intricacies of Immigration law, which, admittedly, can be complicated and confusing. The crux of Texas’ argument depends on perpetuating that confusion — initially created by their District Court Judge of choice Andrew Hanen — about what the immigration law says and, specifically, between the concept of “lawful status” and “lawful presence.”  The former is a term of art that refers to formal immigrant, nonimmigrant (temporary visa classification) or parole status.  The latter is Hanen’s legally sloppy reference to undocumented noncitizens who are in a period of stay authorized by the Department of Homeland Security—whether or not they also have nonimmigrant, immigrant visa or parole classification.  

“Unlawful presence” refers to those undocumented noncitizens who are accruing time toward the 3/10 year bar to readmission—and not all undocumented noncitizens accrue “unlawful presence.”  For example, students and exchange visitors are admitted for duration of their study programs—not for a specific period of stay authorized by DHS.  If a student overstays his or her program she does not generally accrue unlawful presence toward the 3/10 year bar. To be sure, she is “out of status” and subject to deportation—but she is not accruing “unlawful presence” such that once she departs the U.S. she’ll be barred from returning for a 3 or 10 year period. These are more than legal technicalities.  In the complex world of immigration law lawful status has a precise legal meaning.  Lawful presence does not.

Importantly, as Professor Anil Kalhan has observed on two separate occasions, here and here, the concept of “lawful presence” does not exist as a legal concept in the sense that Hanen, the 5th Circuit, and now Texas use it.  Hanen, later followed by the 5th circuit, took the concept of unlawful presence—a legal term of art which specifically refers to noncitizens who entered the country illegally, overstayed their authorized period of stay, were found to be out of status or (in certain circumstances) worked without authorization —and proceeded—without any statutory authority whatsoever—to reason that noncitizens who had been accruing “unlawful presence” were rendered “lawfully present” by DAPA or DACA+.  Therefore, so Hanen reasoned, the President’s immigration executive actions unlawfully transformed an unlawfully present noncitizen into a noncitizen with lawful immigration status.  This was (and is) wrong as a matter of law.  

If, when reading through the Texas brief, or the lower court opinions, one substitutes “lawful status” for “lawful presence” Texas’ argument falls on its face because DAPA and DACA+ clearly state that the guidance creates no lawful status.  The strongest argument they have derives from various (unwise) political statements President Obama made about changing the law. For Texas, comments made by the President at press events now serve as valid legal sources – and their strongest argument.

Of course, there’s more. Some of this gets very technical, but, again, that’s apparently part of the GOP strategy. Texas perpetuates that Hanen-created confusion between lawful presence and lawful status to make several brazen misstatements which, frankly, I find appalling—especially in a brief filed in the Supreme Court of the United States. Here a few examples:

First, on page 5 of the Texas brief, they claim that on page 38 of its brief the Administration asserts “without any statutory citation, that an alien’s designation as ‘lawfully present’ is not a defense to removal…But defendants also assert [on page 9 footnote 3 of its brief] that an alien granted lawful presence is not ‘present in the U.S. without being admitted or paroled’…That directly negates the charge that an alien is removable as present ‘without being admitted or paroled.’  Lawful presence also appears to negate the charge that an alien is removable as ‘present in the US in violation of [federal law].'”  In fact, on page 9, footnote 3, the Administration’s brief asserts aliens granted Deferred Action “cease accruing unlawful presence for purposes of [the 3/10 year bar]…An alien is deemed ‘unlawfully present’ for this purpose if he is present ‘after the expiration of the period of stay authorized by [the Department of Homeland Security] or is present in the US without being admitted or paroled…DHS treats Deferred Action as a “period of stay authorized by the DHS” that tolls the accrual of [unlawful presence]”.

Contrary to the arguments made in the Texas brief, on page 5 of its brief the United States asserts “Deferred Action does not confer lawful immigration status or provide any defense to removal.  An alien with Deferred Action remains removable at any time, and DHS has absolute discretion to revoke deferred action, without notice or process.”

On page 41 of its brief Texas argues “Nor does it matter that DAPA can be ‘[revoked].’  An alien is still deemed lawfully present—and thus eligible for valuable benefits—until any revocation.  Visas too are revocable at any time in the Executive’s discretion.  But that Executive acts by issuing a visa, and the alien is lawfully present while holding one.” This is flat out obfuscation—and frankly, this is one of the statements that pushes the “candor to the tribunal” envelope.

First, to compare DAPA and a visa is beyond comparing apples and oranges.  DAPA has to do with a discretionary decision to temporarily forbear removal against a person who is in the U.S. without authorization under the civil immigration statute.  A visa is legally nothing more than permission to apply for admission to the U.S.—it is NOT, as the lawyers for Texas likely well know, authorization to be admitted or remain in the U.S.

Second, while the executive may revoke a nonimmigrant visa, that authority has little to do with lawful immigration status.  As stated, a visa generally gives a person permission to apply for admission to the U.S. in a specific immigrant or nonimmigrant visa classification e.g. employment- or family-based immigrant or visitor, worker, student status etc. It does NOT give anyone permission to be in the U.S.  So, a noncitizen with a 10 year visitor visa is typically admitted by U.S. Customs and Border Protection for a 6 month authorized period of stay.  If the noncitizen overstays the 6 month period his valid visa is rendered void by operation of law regardless of its 10 year validity and he begins to accrue “unlawful presence” toward the 3/10 year bar.

The bald assertion that an noncitizen is “lawfully present” while holding a visa is a flat out misstatement of law and fact.  Inexcusable in a SCOTUS brief.

Texas does not dispute that the Obama Administration’s enforcement priorities–including his authority to forbear removal of millions of undocumented noncitizens–are solidly legal. Nor can it. But it makes the argument throughout its brief that Texas will be harmed because DAPA recipients who otherwise would have left will cost the state money. On page 14 they argue, “DAPA will cause States to incur additional…costs.  The district court found, based on record evidence, that DAPA will cause aliens who otherwise would have left the country to remain and consume these costly services.” Either this is a an inappropriate political argument in favor of “self-deportation” or it’s flat out inconsistent with Texas’ concession that millions of undocumented immigrants will remain in the U.S. regardless of DAPA or DACA because of the Executive’s adherence to lawful enforcement priorities.

Texas argues that the law does not permit the DHS to grant employment authorization to deferred action recipients, other than in four specific categories authorized by statute–U visa applicants, family members of lawful permanent residents killed in the September 11 terrorist attacks, family members of U.S. citizens killed in combat and Violence Against Women Act (VAWA) applicants.  Here the Texas lawyers are trying to persuade SCOTUS to agree that “the 5th circuit correctly held that the Executive’s sweeping limitless conception of its power is beyond the scope of what the INA can reasonably be interpreted to authorize.”  In other words, they argue that the law does not permit the Administration to grant deferred action recipients employment authorization other than in the four specific enumerated situations.  Of course Texas conveniently ignores the statutory and regulatory provisions and historical practice making noncitizens granted deferred action eligible to apply for employment authorization based on a showing of economic need.  It was here that the 5th circuit went beyond what even Hanen did in his order blocking in DAPA and DACA expansion.  If allowed to stand, this portion of the misguided 5th circuit holding would upend deferred action as we know it.

Finally, and most surprising, the Texas argument for standing contains little, if anything, new. They must realize, given Chief Justice Roberts’ strong views on standing that this is probably  their biggest hurdle. But, to be honest, they don’t have much new to offer. They rely on the claim that Texas will be harmed through costs incurred by the issuance of driver’s licenses (as well as other costs incurred) as a result of deferred action.  However, on the question of whether states get special standing consideration Texas is clearly arguing to the justices on the Court who previously decided in favor of standing in Massachusetts v EPA.  The Texas lawyers incorrectly claim that to deny standing would require the Court to overrule Massachusetts, something courts—especially the Supreme Court—would be reluctant to do because of the hallowed tradition of stare decisis.  Also, Chief Justice Roberts authored the dissent in Massachusetts, in which he adhered to the Supreme Court’s traditionally rigorous standard for standing—an obvious problem for Texas in this case.  Fortunately, the Supreme Court can dispose of Texas’ standing argument, as did the Administration in its brief, because the Massachusetts case–which involved a very different set of circumstances–does not support Texas’ argument here.

Texas’ response brief makes it clear that the GOP’s case against DAPA and DACA+ depends on confusing the Justices about the intricacies of immigration law. That might have worked with Hanen and in the Fifth Circuit, but shouldn’t with the Supreme Court.  And, with gratuitous references to President Obama’s statements at press conferences, they underscored that their case is really a political dispute, which should be decided at the ballot box, not by the federal judiciary.

My take on #immigration and the 2016 presidential election

In case you missed it:

Six key reasons why President Obama thinks #SCOTUS should uphold his #immigration executive actions


Monday the Obama Administration filed its opening brief before the U.S. Supreme Court in U.S. v. Texas, the lawsuit challenging DAPA and DACA expansion, the President’s November 20, 2014 executive actions on deportations. Here are six key arguments the Administration has made to the Court:

  1. The lawsuit is a political, not a legal dispute and has no place in court.  The Administration stresses that the case is, at bottom, a policy dispute masquerading as a lawsuit.  “The court of appeals struck down a federal immigration enforcement policy at the behest of a group of States that are not the objects of that policy. Its ruling violates bedrock limits of Article III and forces the federal courts to resolve complex debates over immigration policy that the Constitution reserves to the political Branches of the National Government.” And later, “Within the National Government, it is the responsibility of the political Branches—not the federal courts—to establish and revise immigration policies for our Nation as a whole and, in so doing, to consider the views of different States. 6 U.S.C. 202(5). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.”
  2. Texas and the 25 other states have no standing to sue the federal government over its immigration policy—they have no business taking their challenge to DAPA and DACA expansion to court.  Citing DaimlerChrysler v. Cuno, an opinion authored by Chief Justice Roberts himself, the Administration emphasizes that “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”  The Administration continues, citing Arizona Christian Sch. Tuition Org. v. Winn, (another case in which Roberts was in the majority) arguing that to “establish standing, a plaintiff must show, at a minimum, that it has suffered an individualized injury to a ‘legally protected interest,’ that the injury is ‘fairly traceable’ to the defendant’s challenged conduct, and that the injury is redressable by a favorable decision.”  The claimed harms to Texas, so the Administration argues, “are nothing more than allegations of indirect or incidental effects from the Guidance, not invasions of any legally-protected interest under the Constitution.”
  3. Chaos will ensue in the courts if Texas is permitted to sue the federal government over an immigration enforcement policy.  Allowing this case to go forward, the Administration claims, “would upend the constitutional design by enmeshing the courts in all manner of disputes between the federal government and a State, or competing factions of States, over immigration policy.” The government argues it will open the floodgates, drowning the federal courts in claims brought by states that disagree with a federal policy.  “If States could establish standing on the basis of the indirect effects of federal policy choices regarding immigration enforcement, federal courts would be drawn into all manner of generalized grievances at the behest of individual States that disagree with federal policy judgments. Such a rule would enable any State to make an end-run around the structural limitations on its authority and cause the very sort of harms those limitations are intended to prevent.”  Later, the Administration continues, “Allowing individual States to challenge such decisions based on their incidental effects would upend the federalism and separation-of-powers principles that form the foundation of our constitutional structure.”
  4. The case is not about Mr. Obama’s authority to grant temporary deportation reprieves—everybody agrees the President has that authority—it’s about the Republicans’ objection to allowing undocumented parents a chance to work legally to support their families. “[R]espondents do not dispute that the Secretary has discretion to establish policies for forbearing from removing every single person who is potentially eligible under the Guidance—and indeed for forbearing from removing the larger number of aliens who he has determined are not enforcement priorities. The Secretary thus has ample authority to notify these lowest-priority aliens that he has made a non-binding decision not to remove them for a period of time. The real focus of respondents’ legal objection is not deferred action itself, but the availability of work authorization as a result.”  The government then provides the Court a detailed explanation of the availability of employment authorization to undocumented immigrants granted deferred action demonstrating that it’s nothing new, and well-grounded in the law.
  5. Congress has effectively authorized DAPA and DACA expansion.  The Administration cleverly uses the Congressional Republicans’ failure to defund DACA and DAPA against the GOP plaintiffs arguing that the failure and subsequent funding of DAPA and DACA is tantamount to Congressional acquiescence. “Congress has considered a series of bills that would bar implementation of DACA (and later DAPA) or block funding unless they are rescinded, and that would limit the Secretary’s authority to grant work authorization. E.g., H.R. 5759, 113th Cong., 2d. Sess. (2014). None has passed both the House and Senate, much less become law. After much debate, Congress instead has enacted two appropriations bills that fund DHS—leaving DACA and DHS’s deferred action and work-authorization authority untouched. 2016 Appropriations Act 256; 2015 Appropriations Act, 129 Stat. 42.”
  6. The Republicans’ claim that the deferred action guidance violates the Take Care Clause is not worth the paper it’s written on.  The Administration all but dismisses the states’ claim that DAPA and DACA expansion violate the president’s obligations under the Take Care Clause, devoting a mere three (3) pages to it at the end of the brief.  The government argues that the states “merely use the Take Care Clause to dress up their misguided statutory arguments in constitutional garb… And in any event, the Secretary is faithfully executing the weighty and complex task of administering and enforcing the INA.”

#Texas #immigration case is opportunity for #SCOTUS to show it’s not tainted by partisan politics


Posted on The Hill Congress Blog by David Leopold

Earlier this month Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust—the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.

Robert’s concern is well founded. The political pressure on the justices—particularly from the right—is perhaps more intense than at any time in the nation’s history.

Republican reaction to the sudden death of Justice Antonin Scalia last week has only fed this perception. Senate Republican Leader Mitch McConnell (R-Ky.)didn’t even have the decency to wait until Scalia’s body was flown back to Washington before he declared—despite the clear language of the Constitution–that President Obama should not be permitted to appoint Scalia’s replacement. McConnell’s intent to obstruct the confirmation process disrespects the legacy of Scalia himself who would have unquestionably upheld the president’sconstitutional authority to name his successor—an irony obviously lost upon McConnell and the other GOP senators who dutifully fell in line behind their leader.

Yet despite the politically charged atmosphere left in the wake of Scalia’s passing, the eight justices of the Supreme Court—and Chief Justice Roberts in particular—are presented with a critical opportunity to dispel the impression the Court has been corrupted by politics—something Linda Greenhouse noted Roberts had a hand in creating; that it is indeed the dispassionate umpire of “balls and strikes” Roberts described in his 2005 confirmation hearing. And, as the Court moves on to tackle a docket laden with cases ranging from abortion to worker’s rights to affirmative action, no case presents the justices with a greater opening to eschew the intrusion of politics into the courtroom as U.S. v. Texas, the challenge to Obama’s executive actions on deportations.

Here’s why:

The lawsuit is unquestionably a brazen political attack on the president’s November 20, 2014 deportation deferral known as DAPA and DACA expansion. Before the ink was even dry on the deferred action guidance, Republicans in Congress tried repeatedly to block the President’s actions – and they failed repeatedly. Taking another route, the state of Texas, joined by mostly GOP governors and attorneys general from 25 states, shopped for a friendly judicial forum in which to launch a legal assault. And they found one in the Brownsville, Texas, courtroom of U.S. District Judge Andrew Hanen, who’d made a name for himself in other cases excoriating the Obama administration for what he described as its “failure to enforce current United States law.” The GOP politicians took page from the playbook of birther queen Orly Taitz who identified Hanen as anti-immigrant and filed a lawsuit in Hanen’s court to stop the federal government from bussing immigrant minors from Texas to temporary detention centers outside the state. As predicted, Hanen blocked DAPA and DACA expansion and was later affirmed by the Fifth circuit, the most conservative appeals court in the country.

The Supreme Court agreed to hear the case in January and until Scalia’s death many court observers speculated that the key to upholding the president’s executive actions was Justice Anthony Kennedy, who has been a key swing vote in several immigration cases and wrote the majority opinion in Arizona vs. U.S. which recognized the president’s broad discretion over deportation matters, including deferred action.

Since Scalia’s passing the media has been ripe with speculation that the eight justice Supreme Court will divide equally along ideological lines and deadlock 4-4 with Justices Ginsburg, Breyer, Sotomayor and Kagan voting to uphold the President’s executive actions and Justices Roberts, Kennedy, Alito and Thomas voting to strike them down. A tie vote would not set a national precedent but would return the case to Hanen’s court. No doubt cases would be brought by advocates – and even states – to end the injunction in other states that welcome the president’s deportation deferrals. That’s the kind of judicial chaos that Roberts seems to want to avoid.

Fortunately, all this is rank speculation. It’s impossible to know what the Supreme Court—or any individual justice—will do in any case. The more important question is whether the justices will take the opportunity to demonstrate to the nation that they will not allow the judiciary to be used as a forum for partisan political attacks. If they do, there is no doubt that a healthy majority of the court will vote to dismiss the lawsuit, lift the injunction and make clear to the nation that political disputes are to be decided at the ballot box, not in the Supreme Court of the United States.

Leopold, an immigration attorney, serves as counsel to immigration reform groups and is the former president of the American Immigration Lawyers Association

Is @JohnKasich Really a Moderate on #Immigration? Actions Speak Louder Than Words

GOP 2016 New Hampshire

Gov. John Kasich, R-Ohio (AP Photo/Jim Cole)

Posted on Huffington Post by David Leopold

Ohio Governor John Kasich has seemingly positioned himself above the Trump induced anti-immigrant frenzy that has consumed the Republican primary. While the other GOP presidential hopefuls fall all over themselves trying to show the GOP base who’ll deport the most immigrants, who’ll be the first to cancel President Obama’s executive action and who’ll build the biggest wall, Kasich talks about legalizing the 11 million undocumented immigrants currently living in the nation’s shadows–although he stops well short of offering them a path to citizenship.

At Saturday’s Republican debate Kasich claimed he’d send Congress an immigration reform plan within his first 100 days in office. A week earlier, just before his impressive second-place finish in the New Hampshire primary, Kasich even seemed to show compassion toward undocumented immigrants. “I couldn’t even imagine,” he said, “how we would even begin to think about taking a mom or a dad out of a house when they have not committed a crime since they’ve been here, leaving their children in the house. I mean, that is not, in my opinion, the kind of values that we believe in.”

So it’s worth asking: Do Kasich’s actions as governor of Ohio match his kinder gentler tone on the presidential campaign trail?

Unfortunately, not so much.

Under Kasich Ohio has enthusiastically joined Texas and 24 other GOP-led states in a brazenly partisan lawsuit aimed at blocking President Obama’s plan to defer the deportation of nearly 5 million undocumented youth and parents of U.S. citizens, including an estimated 82,000 Ohio residents. Shortly after the President announced his actions–known as DAPA and DACA expansion–the Republican governors and attorneys general sought out a sympathetic judge who predictably enjoined the deferred action guidance which is now pending before the U.S. Supreme Court.

In the meantime, the very moms and dads that Kasich spoke so compassionately about on the GOP primary debate stage continue to live in fear that their families will be torn apart at any moment.

That’s exactly why 25 undocumented parents and their children from around Ohio met with Kasich at the statehouse in Columbus last year shortly after he announced his candidacy for president. Participants included Ohio mom Olga Flores whose 4-year-old son is currently battling cancer; an immigrant father of two small sons who recently lost their mother to a drunk driver; and a mother who has lived in the U.S. for 25 years and has lost her dad, sister and brother to deportation. The families begged Kasich to protect them, explaining how they and their children live their lives in fear, worried that a trip to the grocery store or school could end in a traffic stop and deportation. Their hopes were lifted when the President’s executive actions were announced, so they told Kasich, only to be crushed by the partisan lawsuit Ohio, under Kasich’s leadership, has engaged in.

Are these the very same moms and dads Kasich claims he could not imagine deporting? If so, why is he standing idly by while Republican governors and attorneys general–including Ohio’s Mike DeWine–target a program which will offer them a temporary reprieve from deportation and a chance to support their families?

Kasich’s response? He told the undocumented parents and children that it was Attorney General Mike DeWine, his fellow Republican, who signed the Ohio onto the Texas case, not him–a curious response from the state’s chief executive, and one that brings his leadership into question. He also, predictably, blamed president Obama for not getting an immigration reform package through the GOP-dominated U.S. House of Representatives. Let’s not forget the House was led by Kasich’s long-time House colleague and fellow Ohioan, Speaker John Boehner (R-OH). Never mind that had that Republican leadership allowed a vote immigration reform would have been enacted and the 25 families Kasich met with last summer would be earning their way toward citizenship.

Nor can Kasich defend his support for the Texas attack on DAPA and DACA expansion on economic grounds. Blocking the deportation deferrals hurts Ohio’s economy which stands to gain an estimated $41 million dollars in tax revenue to be paid by the undocumented Ohioans who’ll qualify for the program. Ironically, the same holds true for the state of Texas which bases its right to challenge the President’s immigration actions on costs in will incur through the issuance of driver’s licenses to qualified undocumented immigrants. In fact, according to theCouncil of Economic Advisors, the immigration actions will increase Texas’ GDP by $8.2 billion to $19.2 billion over the next ten years. And in South Carolina–where Kasich is hoping shore up his candidacy with a strong finish in Saturday’s primary–the deportation deferrals will increase the state’s GDP by as much as $2.3 billion.

Sadly, it doesn’t take much to sound reasonable on immigration in this year’s Republican primary. But actions speak louder than words–especially the words of a politician running for office. When it comes to actually protecting vulnerable families in Ohio and across the nation, John Kasich needs to walk the walk, not just talk the talk.

Follow David Leopold on Twitter: www.twitter.com/DavidLeopold

Two Key Takeaways from Yesterday’s Announcement by The Supreme Court

There are two big takeaways from yesterday’s announcement by the Supreme Court that it will review the President’s immigration executive actions–DAPA and DACA.

First, it’s good news for proponents and bad news for opponents.  It’s a huge win for 5 million parents of U.S. citizens and legal residents across the nation who will finally get their day in court after nearly a year of waiting.  It’s also a huge loss to Texas and the other GOP led states who sued in late 2014 to block Mr. Obama’s DAPA and DACA expansion from being implemented.  Make no mistake, despite what they may be spinning now, restrictionist opponents of DAPA and DACA expansion fought tooth and nail to keep the U.S. Supreme Court from taking it up, including filing a 40 page legal brief imploring the Justices to not hear it.

Second, it’s very good news that the Supreme Court has asked the parties to argue whether the executive actions violate the “Take Care” clause of the Constitution.  Judge Hanen’s decision blocking the DAPA and DACA was based on narrow procedural grounds–he did not rule on Texas’ claim that the President’s executive actions, which offer a temporary deportation reprieve to an estimated 5 million immigrants, violates his constitutional obligation to “take care that the laws be faithfully executed”.   If the Court ruled only on the narrow procedural grounds, the case would go back to Judge Hanen, a hand-picked judge whose determination to thwart immigrants and President Obama is well-established.  That the Court wants argument on the “Take Care” Clause signals that the Justices are intent on resolving the GOP lawsuit fully and completely.

That’s a good sign not only for immigrants, but for the entire country.

ICE raids are repugnant

Houston Chronicle

Published in the Houston Chronicle by David Leopold (A version of this commentary first appeared on CNN.com)

The Obama administration rang in the New Year with a series of heavy-handed immigration raids aimed at ferreting out and deporting Central American families who entered the United States after fleeing rampant violence in their home countries. According to Department of Homeland Security Secretary Jeh Johnson, the focus of the Immigration and Customs Enforcement operation is families ordered deported by an immigration judge either because their asylum claims were denied or they didn’t appear for their immigration court hearings. The raids have caused widespread shock, fear and panic among immigrant communities in Texas and elsewhere.

The raids operation is shocking, outrageous and just plain wrong. This is something we would expect from a President Trump, not President Obama.

The president is reacting – actually overreacting – to a recent spike in the migration of Central American families and unaccompanied children to the United States. He apparently wants to deter others from making the arduous, life-threatening trip north to the United States and to show that his administration is adhering to its Nov. 14, 2014, immigration enforcement priorities that, in addition to criminals and national security threats, target noncitizens who entered the U.S. or were ordered deported after Jan. 1, 2014.

But it’s morally repugnant to send ICE agents into local communities to arrest and detain vulnerable families, including women and children, and deport them to places where their lives will be threatened by unspeakable violence – countries like El Salvador, Guatemala and Honduras, where gang and drug violence force innocent families to flee north to the United States in search of a haven.

We know that most are eligible for asylum or other forms of protection because U.S. Citizenship and Immigration Services data show that an overwhelming percentage of the mothers and children in family detention centers in the United States can show a reasonable fear of persecution in their home countries.

Other Central Americans ordered deported in absentia may not have had a fair chance to plead their asylum case because they did not get adequate information from government bureaucrats explaining their obligation to go to court. Clearly, being ordered deported under those circumstances is not due process.

And this is exactly what the CARA Project – which provides pro bono legal assistance to families held at ICE detention centers in South Texas – found among the cases of Central Americans arrested in these raids. After project lawyers filed emergency appeals, the Board of Immigration Appeals temporarily stopped the deportation of at least seven Central American immigrants so their cases could be reviewed. As CARA Director Katie Shepherd cogently put it, “This is a clear indication that something is very wrong.”

Nor can it be said that deporting those whose asylum cases have been denied after a hearing before an immigration judge is any more reasonable or appropriate. Central Americans fortunate enough to make their case in court with a lawyer are burdened with complicated and exacting legal standards that govern asylum law.

An immigration judge’s refusal to grant a person’s asylum claim hardly means he or she does not face serious, life-threatening harm in the Northern Triangle of El Salvador, Honduras or Guatemala. The bottom line is that for many Central Americans, deportation means the forcible return to a cauldron of life-threatening violence.

At a minimum, the continued ICE raids should be immediately and unequivocally stopped. Raids destroy families, ruin economies and erode the community trust essential to effective local law enforcement.

Fearing deportation, undocumented immigrants may hesitate to report serious crimes to local law enforcement. Immigration raids targeting families, including women and children, should be assigned to the dustbin of history.

Unfortunately, Obama appears to be doubling down. White House press secretary Josh Earnest said Friday that the enforcement strategy will not change.

The president is making a colossal mistake by viewing this crisis solely through the lens of immigration enforcement. It’s much bigger than that – it’s a regional humanitarian crisis that demands a regional solution.

What’s needed now from Obama is leadership, not brutal enforcement policies targeting vulnerable families. Understanding the administration’s legitimate concern about preventing a new border surge, including its concern that those Central Americans who flee north to the United States face a life-threatening journey, Obama must do better than resort to ICE raids.

The president should work with regional partners toward a comprehensive regional solution aimed the root causes of the migration and devote resources to improving the economic and social situation in Central America. That solution includes regional safe havens, so Central American families fleeing violence can find shelter in the area rather than being forced to risk the treacherous journey north.

In the meantime, even if one accepts the administration’s argument that the Central American families targeted for deportation have received fair hearings – which I don’t – that still doesn’t explain why the administration is dispatching armed ICE agents into communities to arrest, detain and forcibly deport families. ICE has the power to allow people who’ve exhausted court proceedings to leave the country on their own. This heavy-handed approach tells me that the president is trying to send a broader message to Central American refugees – that they need not look to America for safety or shelter. That’s reprehensible, and something we’d expect from a President Trump, not President Obama.

Leopold, founder and principal of an immigration law firm in Cleveland that carries his name, is the past president of the Washington-based American Immigration Lawyers Association. 

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