Symposium: DACA is unlawful

By on Sep 13, 2019 at 12:00 pm

Elizabeth Murrill is the Solicitor General of Louisiana.

The federal government should prevail in the DACA cases for one straightforward reason: DACA is unlawful. Courts should not — indeed, cannot — stop the executive from rescinding a plainly unlawful edict that the government never had the power to issue in the first place.

DACA is the rare federal program that manages to be both substantively and procedurally unlawful. It contravenes the duly enacted substantive law of the United States. And it was promulgated without a whiff of input from the public. No matter one’s views on the policy principles motivating DACA, we should all be able to agree that the executive cannot legislate by fiat. Sacrificing separation of powers, which is embedded in the DNA of our government structure, cannot be justified no matter how much we may favor a policy.

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Petitions of the week

By on Sep 13, 2019 at 11:00 am

This week we highlight petitions pending before the Supreme Court that address, among other things, whether federal courts have the authority to impose partial filing fees on habeas petitioners, whether a federal removal statute is unconstitutional under the suspension clause as applied to the respondent, whether the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years, and whether the Protection of Lawful Commerce in Arms Act’s predicate exception encompasses alleged violations of broad, generally applicable state statutes, such as the Connecticut Unfair Trade Practices Act.

The petitions of the week are below the jump:

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On Thursday, September 12, Justice Ruth Bader Ginsburg renewed her annual commitment to speak to first-year law students at the Georgetown University Law Center, whose faculty included her late husband, Marty Ginsburg. Ginsburg discussed highlights from the previous and upcoming Supreme Court terms, followed by a Q&A with Dean William Treanor.

In her remarks, Ginsburg first described the retirement of Justice Anthony Kennedy as one of the most transformative events on the court in her lifetime. She commended Kennedy’s replacement, Justice Brett Kavanaugh, for Kavanaugh’s historic selection of an “all-female law clerk crew.” Indeed, last term marked the first time that women comprised a majority of Supreme Court law clerks. Ginsburg pivoted to note that women are still underrepresented among Supreme Court advocates.

The justice’s term recaps and previews were noteworthy for what she chose to emphasize and what to gloss over.

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Friday round-up

By on Sep 13, 2019 at 7:07 am

At The Economist’s Democracy in America blog, Steven Mazie writes that Wednesday’s ruling allowing the government to enforce a restrictive asylum policy pending appeal gave President Donald Trump “fodder for a triumphant tweet …  and a fresh reminder that the Supreme Court appears to increasingly be his reliable ally.” For The Washington Post, Robert Barnes notes that “Wednesday marked the second time since the court adjourned in late June that it approved an emergency request from the Trump administration to overrule a lower court on a border security issue.” The editorial board of The Wall Street Journal calls the ruling “a victory for a functioning judiciary and the rule of law, no matter who is President.” At Slate, Mark Joseph Stern argues that “[w]hat may be most surprising about Wednesday’s decision … is the court’s apparent rush to issue it.”

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Shoba Sivaprasad Wadhia is an immigration attorney, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law – University Park. She has served as an expert or co-counsel in litigation in defense of DACA. The anecdotes in this post are drawn from her forthcoming book, Banned: Immigration Enforcement in the Time of Trump,” released on September 10, 2019.

On November 12, 2019, the U.S. Supreme Court will hear oral argument in three consolidated cases challenging the end of the Deferred Action for Childhood Arrivals program, known as DACA. DACA was announced from the Rose Garden by former President Barack Obama on June 15, 2012, and implemented two months later, allowing those who entered the United States before the age of 16 and who meet residency, educational and other requirements to seek deferred action for a two-year period. Deferred action is one form of prosecutorial discretion in immigration law. Those who are granted deferred action may apply for and receive employment authorization upon a showing of “economic necessity” and pursuant to a regulation published by the government in 1981. Outside of DACA, thousands of deferred-action recipients have been granted work authorization under this regulation.

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Christopher J. Hajec is Director of Litigation at the Immigration Reform Law Institute.

At first, it might seem that a trio of cases before the Supreme Court involve only the lawfulness of the government’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program, not the lawfulness of the program itself. After all, in the abstract, it is possible both that DACA is unlawful and that the Department of Homeland Security failed to explain itself sufficiently, or otherwise violated the Administrative Procedure Act, when it rescinded DACA. Because the plaintiffs are challenging the rescission, it might seem that the Supreme Court could, if so inclined, simply affirm their victories in the lower courts, and not concern itself with the lawfulness of DACA.

In fact, however, the court will have a strong reason to assess the merits of DACA. As it turns out, that assessment is necessary in determining whether the federal courts have jurisdiction in these cases.

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Thursday round-up

By on Sep 12, 2019 at 7:02 am

Amy Howe reports at Howe on the Court that the Supreme Court last night “gave the government the go-ahead to enforce a new rule that would bar most immigrants from applying for asylum if they pass through another country – such as Mexico – without seeking asylum there before arriving in the United States … while it appeals a decision by a federal judge in California to the 9th Circuit and, if necessary, the Supreme Court.” At The Wall Street Journal, Brent Kendall and Jess Bravin report that the ruling “giv[es] new life to White House efforts to deter a flood of immigrants seeking refuge at the southern border.” At CNN, Ariane de Vogue and Priscilla Alvarez report that “Justices Sonia Sotomayor and Ruth Bader Ginsburg noted their dissent.”

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Note: This post has been updated to include a discussion of what conclusions can (and cannot) be drawn about the justices’ votes on the government’s request.

The Trump administration won a major (if, at least for now, only temporary) victory on immigration today at the Supreme Court. The justices gave the government the go-ahead to enforce a new rule that would bar most immigrants from applying for asylum if they pass through another country – such as Mexico – without seeking asylum there before arriving in the United States. The U.S. Court of Appeals for the 9th Circuit had blocked the government from implementing the new rule in Arizona and California, but now the government can enforce it nationwide while it appeals a decision by a federal judge in California to the 9th Circuit and, if necessary, the Supreme Court. Tonight’s order drew a dissent from Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg); there were no other recorded dissents.

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Dayna Zolle is Appellate Counsel and Brianne Gorod is Chief Counsel at the Constitutional Accountability Center.

Earlier this year, President Donald Trump made news when he suggested, repeatedly, that he views the Supreme Court as an ally, one he can count on to give him a “fair shake” when he thinks that other courts won’t. To the extent Trump thought that he could count on the court’s very conservative majority to always rule in his favor, last term’s decision in the census case should have given him pause.

Another big test of the president’s apparent belief that he has the Supreme Court in his back pocket is right around the corner: This term the court will hear challenges to the administration’s termination of the Deferred Action for Childhood Arrivals program, known as DACA. The president may ultimately be disappointed by the result in these cases — because if the Supreme Court follows the law and well established precedent, it will conclude, like the lower courts that considered these cases, that the administration’s decision to terminate the program was unlawful.

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This is going to be a big year at the Supreme Court, likely with more fireworks than the last few. Since Justice Antonin Scalia passed away during the 2015 Supreme Court term, the court has been in an adjustment period. There was the long stint without a ninth justice. Justice Neil Gorsuch was finally confirmed at the tail end of the 2016 term. At the end of Gorsuch’s first full term in 2017, Justice Anthony Kennedy announced his retirement. This past term was Justice Brett Kavanaugh’s first term on the court.

Justices are often prone to agreement with other justices during their first term on the court, leading to a high frequency in the majority (Kavanaugh had the highest frequency in the majority of the justices last term at 88 percent), and they begin to develop their own pattern of voting in subsequent terms. The consensual norm in a justice’s first year is known as the “freshman effect.” Research from Professor Lee Epstein and others has shown how justices’ preferences change over time.

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