Dan Stein is President of the Federation for American Immigration Reform.

The Supreme Court has decided to review certain elements in United States v. Texas. The Supreme Court should leave the injunction in place until a full trial on the merits. There is no urgency to decide this case so long as the administration is restrained from giving out benefits that would be difficult to revoke: work authorization and eligibility for various other benefits.

Should the Court lift the injunction and endorse the administration’s wildly broad claims of unlimited power to permit millions who are outside the rules stipulated by the Immigration and Nationality Act (INA) to remain here, then Congress and the American people will be left without remedy in the face of an unprincipled executive who willingly refuses to carry out his legal and constitutional responsibilities. In other words, the American people will never be able to rely on the courts to stop executive lawlessness in the provision of civil benefits in favor of an unlimited number of aliens who seek to enter or remain in the United States.

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Tuesday round-up

By on Feb 9, 2016 at 8:50 am

Briefly:

  • In The Washington Post, Robert Barnes reports on an amicus brief filed in the challenge to Texas’s abortion regulations that “urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.”
  • At his eponymous blog, John Q. Barrett responds to a blog post by Anton Piatigorsky on Justice David Souter, countering that what President George H.W. Bush “was seeking was, by all accounts, a problem-free, no paper trail, quality, Republican-type nominee—who, yes, as a replacement for Justice Brennan, almost by definition had the potential to shift the Supreme Court rightward.”
  • At The Blaze, Mark Miller weighs in on the property rights case S. Army Corps of Engineers v. Hawkes Co., in which the Court will hear oral arguments in March, arguing that the “right to own and responsibly benefit from property is a cornerstone of all our liberties. But that right lacks substance if owners can’t go to court to defend it, and bureaucrats are allowed to answer only to themselves.”

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Anne Egeler is Deputy Solicitor General for the State of Washington. She co-authored a cert.-stage amicus brief on behalf of Washington, fourteen other states, and the District of Columbia in support of the Obama administration in United States v. Texas.

For decades, Republican and Democratic presidents have used their executive authority to target immigration enforcement efforts and to defer deportation of certain undocumented immigrants. So there was nothing novel in President Barack Obama’s 2014 directive to the Department of Homeland Security to defer deportation of certain undocumented immigrants who pass background checks, have lived in the United States for five years, and either came here as children or have children who are U.S. citizens or permanent residents.

What is novel, however, is the theory under which Texas and other states challenged President Obama’s actions in federal court. Because Texas and the other plaintiff states have alleged no real harm, they should not be able to use the federal courts to further their political objectives and derail national immigration policy. The reality is that the president’s immigration directives will substantially benefit states, not harm them. That is why Washington and many other states filed an amicus brief urging the Supreme Court to hear this case and why we will file an amicus brief on the merits urging the Supreme Court to uphold the president’s actions.

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Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. The ACLJ is planning to file an amicus brief in United States v. Texas on behalf of members of Congress and thousands of Americans.

Impatient presidents don’t get to rewrite the law when they don’t get their way. This is foundational to our country’s entire system of governance. The Supreme Court recently granted the president’s petition for certiorari in United States v. Texas, a case taking this issue head on. Yes, this case is of great national importance, as the president contends, but for reasons different than those he advanced. It’s not about immigration policy. It’s about the Constitution and fundamental pillars of our republic – the separation of powers – intended to protect our liberties and freedoms (including those of people lawfully entering the United States).

On numerous occasions, President Barack Obama publicly proclaimed that he took executive action to “change the law” – specifically, to categorically confer “lawful presence” on at least 4.3 million illegal aliens. To the president, his constitutional responsibility to “take Care that the Laws be faithfully executed” brings with it the power to change the law. He’s wrong.

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Monday round-up

By on Feb 8, 2016 at 8:42 am

Briefly:

  • In The National Law Journal (subscription or registration required), Tony Mauro reports that the announcement that Justice Sonia Sotomayor has hired the first Native Hawaiian law clerk “symbolizes a quiet quest she has undertaken since joining the court in 2009 to better understand indigenous populations — not just Native Hawaiians but Native Americans, Alaskan natives and others.”
  • In the Los Angeles Times, David Savage looks ahead to United States v. Texas, the challenge to the Obama administration’s deferred-action policy, and the “signs that at least some of the justices are ready to rein in the president’s ability to take such bold action without the approval of Congress.”
  • At BuzzFeed, Chris Geidner discusses what the Court’s recent decision in Montgomery v. Louisiana, holding that the ban on mandatory life-without-parole sentences for juveniles applies retroactively, means for a group of cases that “ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder.”
  • At Cato at Liberty, Ilya Shapiro and Randal John Meyer discuss the amicus brief that Cato filed urging the Court to overrule its 1997 decision in Auer v. Robbins, generally requiring deference to an agency’s interpretation of its own guidance.

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

 

 

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Friday round-up

By on Feb 5, 2016 at 10:17 am

Briefly:

  • At Constitution Daily, Lyle Denniston looks at the Constitution’s Take Care Clause, at issue in United States v. Texas, the challenge to the Obama administration’s deferred-action policy for immigration, and notes that if the Court does reach the issue, it “very likely will have to provide a full explanation of what that clause means” “for the first time in history.”
  • In USA Today, Richard Wolf reports that, “as he moves into his second decade as the nation’s 17th chief justice,” Chief Justice John Roberts “is proving to be strikingly consistent in one area that conservatives applaud. He wants to close the courthouse doors to challengers with tenuous legal grounds or claims, thereby limiting the role of the judicial branch.”
  • The editorial board of the Washington Examiner weighs in on American Farm Bureau Federation v. EPA, the challenge to the Obama administration’s efforts to regulate pollution in the Chesapeake Bay watershed, and argues that the lower courts’ rulings in the case “seem to contradict recent Supreme Court rulings that set limits on how far federal agencies can go in rewriting statutes.”
  • In The Economist, Steven Mazie discusses a recent article observing that “the Supreme Court has never been older” and notes that watching “the current Justices at work these days is not to witness scenes out of a nursing home.”
  • In The Washington Post, Robert Barnes reports on comments by Chief Justice John Roberts, who said “late Wednesday 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.”

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Next week, the blog will publish a series of articles — a symposium — on the major immigration case now under review by the Supreme Court: United States v. Texas.  The Justices will hold a hearing on the case in late April.  This post provides a basic explanation of that case in non-legal terms.

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Like every other independent nation, America has the right to decide who comes into the country, to stay or just to visit.  But because the borders are not tightly sealed, many foreign nationals enter without official permission and remain.  Once here, many of them live in what President Barack Obama has called “a shadow world,” constantly in fear of being deported and so unable to live normal lives.  There are now more than eleven million of these illegal immigrants.

What to do about them as a matter of national policy is a problem stalled in deep disagreement.  The Senate has passed a broad reform bill that the president would have signed, but that measure died in the House of Representatives.  Twice — once in June 2012, and again in November 2014 — the president and his aides used what they believe were existing powers of the executive branch to draft programs that would postpone deportation of many of these immigrants, allowing them to remain at least for a few years, to get jobs, and to qualify for some public benefits.  Both programs are highly controversial, and the entire issue of immigration control is at the center of this year’s presidential election campaign.

The 2012 program has been in operation, and ultimately may clear the way for some 1.2 million younger immigrants to remain.  The 2014 program — potentially affecting more than four million immigrants — has never gone into effect, because twenty-six states, led by Texas, sued the federal government in a federal trial court in Brownsville, Texas, and the 2014 program and some changes in the 2012 program have been blocked since last February.  That is the case, now usually called United States v. Texas (although twenty-five other states are also involved), that the Supreme Court agreed on January 19 to review.

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UPDATE Friday 10:34 a.m.   A coalition of energy companies powered by natural gas, wind or solar sources, joined by environmental and health groups, has also filed a brief opposing a stay by the Supreme Court of the government’s clean energy plan.

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Arguing that opponents of its new plan to reduce carbon pollution from existing electricity-generating plants are exaggerating the impact, the Obama administration urged the Supreme Court on Thursday not to impose any delay while the legality of the plan is being studied by a federal appeals court.  Nothing about the “Clean Power Plan,” the government’s filing said, would go into effect until long after the courts have finished with their review.

Estimates that more than fifty existing plants that use coal as fuel in their generators will be closing this year because of the plan, the government said, are not reliable.  In fact, if any such facility is on the verge of closing soon, it added, that decision would already have been made without regard to the new carbon-reduction policy.

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Thursday round-up

By on Feb 4, 2016 at 12:05 pm

At The New Yorker, Ian Frazier reports on Justice Sonia Sotomayor’s return to her hometown for an event with the Bronx Defenders – where, among other topics, she discussed her confirmation hearings for the Supreme Court. As Tony Mauro reports for The National Law Journal (subscription or registration required), Sotomayor made fifty-three public appearances over the past two Terms, more than any other Justice.

Briefly:

  • At ACSblog, Ashley Nellis advocates for the “[f]ull implementation of retroactivity regarding Miller v. Alabama” in light of the Court’s recent ruling in Montgomery v. Louisiana.
  • In the wake of the Supreme Court’s reversal of the Kansas Supreme Court in Kansas v. Carr, Timothy O’Neill addresses how state courts might avoid Supreme Court review in decisions favoring criminal defendants in an op-ed for the Chicago Daily Law Bulletin.
  • In her column for The New York Times, Linda Greenhouse argues that, if the Justices “approach their task as judges and not as politicians, the administration will easily prevail” in United States v. Texas, the challenge to the Obama administration’s deferred-action policy for immigration.
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Formally speaking, Utah v. Strieff considers the scope of the Fourth Amendment’s exclusionary rule when an illegal stop leads to the discovery of public information that justifies an arrest. More specifically, here’s the doctrinal question presented: Does the exclusionary rule apply when an officer learns during an illegal Terry stop that that there is a warrant for the suspect’s arrest, he arrests the suspect on the warrant, and he finds incriminating evidence during the search incident to arrest?

As a practical matter, that’s a pretty important question. But this case is also about a big conceptual question: What is the future of the exclusionary rule? This is the Court’s first exclusionary rule case since Davis v. United States in 2011. Davis left the state of the law quite uncertain, giving this case the potential to be a major decision. The Court may stick to its traditional doctrine on the exclusionary rule, in which case Edward Strieff has a strong argument that he should prevail. On the other hand, the Court may use this case to further chip away at the exclusionary rule. If so, all bets are off.

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