Friday round-up

By on Feb 12, 2016 at 7:57 am

There is still more commentary on Tuesday’s order blocking the Obama administration’s implementation of its “Clean Power Plan.”  The editorial board of The New York Times characterizes the order as “deeply disturbing on two fronts,” while at PlanetGreen.org Katrianna Brisack contends that, even if “the Court treated this unexpected move as a routine procedural nicety, in reality its effects on both the atmosphere and the law could be disastrous.”  And at ACSblog, Justin Pidot suggests that the Justices’ “concerns may boil down to this: The coal industry, likely the primary target of state implementation of the CPP, is too big for EPA to regulate absent an express congressional directive.” Continue reading »

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John Eastman is the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence and a constitutional law professor at Chapman University’s Fowler School of Law.

“I’m president, I’m not king,” Barack Obama famously said back on October 25, 2010, responding to requests from groups supporting rights for illegal immigrants to unilaterally implement immigration reform. (He would later attribute the “problem” to the fact that he’s “the president of the United States, not the emperor of the United States.”) “There’s a limit to the discretion that I can show because I’m obliged to execute the law,” he added. “I can’t just make the laws up myself.”

Six months later, he explicitly tied his point to his inability to stop deportations. “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” he said on March 28, 2011. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.”

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Kevin Johnson is Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at UC Davis School of Law.

United States v. Texas raises critically important legal issues concerning the discretion of the executive branch in the enforcement of U.S. immigration laws. Moreover, if allowed to stand, the Fifth Circuit’s finding that Texas has standing to derail discretionary federal immigration enforcement decisions could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement. As the Court explained three Terms ago in Hollingsworth v. Perry, the use of litigation as a political tool, as Texas and other states are doing, is precisely the kind of suit that Article III standing doctrine seeks to prevent.

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Thursday round-up

By on Feb 11, 2016 at 9:19 am

On Tuesday the Court, by a vote of five to four, blocked the Obama administration’s implementation of its “Clean Power Plan.”  Additional coverage comes from Tony Mauro of The National Law Journal (subscription or registration required); from Lawrence Hurley of Reuters; and from Robin Bravender of Greenwire (subscription may be required), who looks more broadly at what the Court’s order may mean “for future challenges to major regulations.”

Commentary comes from Michael Wara, who contends at The Stanford Lawyer that the stay “is likely to have significant ramifications both for the U.S. electric power sector and for the Paris Agreement recently concluded by the UN Framework Convention on Climate Change”; from Geoffrey Barnes and Danielle Gagliardi, who at frESH review the process that led to the stay; from Kevin Johnson and Thomas Wood, who at Renewable + Law suggest that “there will be at least a year of uncertainty for the many stakeholders — in particular the state agencies tasked with developing CPP compliance plans”; from Seth Jaffe, who at Law & The Environment argues that, no matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this point”; from Karen Harned, who at Fed Soc Blog contends that “it appears the Supreme Court has finally caught on to the Administration’s game and has decided enough is enough”; from Luke Wake, who argues at the NFIB Legal Center Blog that the Clean Power Plan not only raises “serious federalism issues,” but also “controversially invades and displaces the authority of the Federal Energy Regulatory Commission and the police powers of sovereign states”; and from Patrick Parenteau, who at ACSblog argues that the stay “is unprecedented in a number of ways.”  Continue reading »

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UPDATED 6:41 p.m.    The Chief Justice has asked for a response to this application; it will be due next Tuesday, February 16, by 3 p.m. Eastern time.  Also: note that the docket number of the application has been corrected to 15A809.

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Forecasting “election chaos” if the Supreme Court does not act promptly, state officials in North Carolina on Tuesday sought a delay of a lower-court ruling that they said may force the rescheduling of the primary election in that state, now set for March 15.   The three-judge district court has ordered the state legislature to quickly draw new maps governing voting for members of Congress in Districts 1 and 12.

The state legislature, the lower court decided, had engaged in “racial gerrymandering” in fashioning new election boundaries, resulting in black voters making up more than fifty percent of the voting-age population in each of those districts.   State officials insist that this was done for political, not racial, reasons.

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Melissa Crow is Legal Director at the American Immigration Council.

The Supreme Court’s decision to grant certiorari in United States v. Texas signals an important and hopeful turning point in the case and provides a long-overdue opportunity to set the record straight on the scope of executive authority in the immigration arena. The case concerns a challenge by Texas and twenty-five other states to the lawfulness of President Barack Obama’s deferred action initiatives – Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) – which were announced in November 2014, but enjoined before they could be implemented.

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Richard Samp is Chief Counsel of the Washington Legal Foundation.

Ever since the Solicitor General filed a petition for certiorari in December on behalf of the government in United States v. Texas, some commentators have been billing the case as an epic clash between the executive and judicial branches. The Court’s decision to add consideration of a question not presented by the petition itself – whether the government’s November 2014 guidance document violates the Constitution’s Take Care Clause – upped the ante and suggested that a major constitutional decision addressing separation-of-powers issues might be in the offing. But not so fast.

The central issue in the case is a much more mundane administrative law issue: did the government violate the Administrative Procedure Act (APA) by adopting the guidance without adhering to the APA’s notice-and-comment procedures? Because the violation of those procedures is so blatant, Justices who prefer avoiding a direct confrontation with the president may well decide to invalidate the guidance on that basis, without addressing the broader constitutional and immigration-policy issues to which the parties are devoting so much attention.

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Wednesday round-up

By on Feb 10, 2016 at 8:46 am

As Lyle Denniston reported for this blog, yesterday a divided Court “ordered the Obama administration not to take any steps to carry out its ‘Clean Power Plan,’ a move that may stall the plan until after the president leaves office next January.”  At The Volokh Conspiracy, Jonathan Adler weighs in on the order; he observes that the Court’s “decision comes as a surprise, as it is unusual for the high court to block federal regulations,” but concludes in the end that a “an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.” Continue reading »

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Dividing five to four, the Supreme Court on Tuesday evening ordered the Obama administration not to take any steps to carry out its “Clean Power Plan,” a move that may stall the plan until after the president leaves office next January.  The order — issued in identical form in individual responses to five separate challenges — will spare the operators of coal-fired power plants from having to do anything to begin planning for a shift to energy sources that the government considers to be cleaner. (An example of the five orders is this one, issued in a case filed by twenty-nine states.)

The plan, designed to make sharp reductions in carbon pollution from the smokestacks of generating plants fueled by fossil sources, is now under review by the U.S. Court of Appeals for the District of Columbia Circuit.   It has put the case on an expedited schedule, with a hearing set for June 2.  However, it may not finish its ruling until this fall, and then either side may try to move the case on to the Supreme Court.

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Brianne Gorod is Chief Counsel at the Constitutional Accountability Center. She co-authored a cert.stage amicus brief on behalf of a bipartisan group of former members of Congress in support of the Obama administration in United States v. Texas.

When the Supreme Court announced it would review a lower-court decision blocking President Barack Obama’s executive action on immigration, supporters of the executive action celebrated the news. But they shouldn’t have been the only ones celebrating: so should anyone who cares about the rule of law. The decision of the court below is at odds with our nation’s immigration laws, which confer substantial discretion on the executive branch to determine how best to implement those laws. And, if allowed to stand, it would undermine the president’s ability to carry out his constitutional responsibility to “take Care that the Laws be faithfully executed.” It is time for the Supreme Court to reverse this erroneous lower-court decision and unfreeze the president’s program, which should have gone into effect nearly a year ago.

By way of background, on November 20, 2014, the secretary of the Department of Homeland Security issued a series of directives to establish priorities for DHS officials’ exercise of their discretion when enforcing federal immigration law. Consistent with statutory guidance provided by Congress, these directives clarified that the government’s enforcement priorities “have been, and will continue to be national security, border security, and public safety.” They further directed that in light of those priorities, and given limited enforcement resources, federal officials should exercise their discretion, on a case-by-case basis, to defer removal of certain parents of U.S. citizens or lawful permanent residents.

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