Symposium: DACA is unlawful

Symposium: DACA is unlawful

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.

Substantive unlawfulness

The core of DACA’s substantive unlawfulness is its grant of “lawful presence” to hundreds of thousands of aliens whom Congress has declared to be unlawfully present. In the Immigration and Naturalization Act, Congress resolved the question of who is entitled to be in this country lawfully: (1) aliens admitted as “nonimmigrant” aliens, who receive temporary permission to be lawfully present according to one of several visa categories; and (2) aliens admitted under “immigrant” visas, who have lawful permanent residence status, commonly known as possessing “green cards.” Those categories create over 40 classes of lawfully present aliens.

Congress also decided who is not entitled to be in this country: anyone “present in the United States without being admitted or paroled,” and anyone who stays here “after the expiration of the period of stay authorized by the [executive].”

When Congress has written a law declaring someone unlawfully present, the executive cannot write its own law declaring the opposite. Yet that is exactly what DACA does. When the executive grants someone a DACA permit, that person receives so-called “deferred action,” which in this context “means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” The executive has repeatedly explained that under DACA, “while [an applicant’s] deferred action is in effect,” the alien is “considered to be lawfully present in the United States.” The executive has even described DACA recipients as having “lawful status.”

Not only does DACA grant lawful presence to people who are here unlawfully, but it also grants work authorization to people whom Congress has declared ineligible for employment. In the Immigration Reform and Control Act of 1986, Congress decided which aliens may and may not work. Permitted to work are individuals falling into about 20 nonimmigrant-visa categories, plus asylum-holders, aliens granted temporary protected status and certain others. Congress also set out who may not work: aliens who entered the country illegally.

Yet DACA rewrites that statute, too. DACA authorizes its recipients to work notwithstanding the fact that they entered the country unlawfully. That may be good policy or bad policy, but we all should agree that the president cannot authorize for work those whom Congress has categorically declared ineligible for work.

Finally, DACA gives its recipients a pathway to U.S. citizenship that substantive immigration law forecloses. Congress has long provided that people who enter the country unlawfully cannot go on to be citizens. But DACA creates a loophole to that rule through what’s known as the “advance parole” process. It works like this: DACA allows its recipients to depart the country, then return to the United States. But upon that return, the DACA recipient’s re-entry to the United States is putatively lawful. So the taint of the initial unlawful entry is washed away, and the DACA recipient is no longer barred from permanent residency or even citizenship.

DACA’s defenders dress it up as a routine exercise of prosecutorial discretion. They argue that the president isn’t obligated to deport anyone, and multiple presidents have decided to forgo the deportation of large numbers of unlawfully present aliens.

But there is a line between prosecutorial discretion and legislation — and DACA is on the wrong side of it. DACA does not merely promise someone that they will not be deported. Rather, it gives its recipients substantive benefits: lawful presence, work authorization and access to advance parole. That is nothing like a case-by-case prosecutorial decision not to deport someone.

Procedural unlawfulness

DACA accomplished all of its substantive unlawfulness without public input — and that makes it procedurally unlawful.

For purposes of the Administrative Procedure Act, there should be no doubt that DACA counts as a “rule.” And, according to Morton v. Ruiz, it is a substantive rule because it “affect[s] individual rights and obligations.” As set out above, DACA grants lawful presence to people whom Congress has declared unlawfully present, and it confers on them the right to work and access advance parole. Every law student knows that when the executive seeks to promulgate and enforce a substantive rule, it first has to go through the notice-and-comment process. Everyone agrees DACA didn’t do so. So DACA is procedurally unlawful.

DACA’s defenders don’t dispute that substantive rules must run the APA gauntlet. Instead, they claim that DACA is actually just a policy statement describing the exercise of prosecutorial discretion. But those same defenders have admitted in their own court filings that “DACA confers numerous important benefits on those who apply for and are granted DACA status.” They contest DACA’s rescission because they want to avoid losing their substantive DACA benefits, yet they also claim that no such benefits exist because DACA is merely an announcement of prosecutorial discretion. The reality is that DACA is a substantive rule that was never validly implemented.

DACA was unlawful the day it was promulgated and remains unlawful today. It represents the executive’s unilateral effort to rewrite substantive federal immigration law. And its enactment violated the APA. People disagree in good faith on whether DACA is good policy. But what shouldn’t be debatable is that DACA violates the law. The executive is right to rescind it.

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Petitions of the week

Petitions of the week

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:

7 West 57th Street Realty Company, LLC v. Citigroup Inc.
19-148
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.
Issue: Whether an antitrust plaintiff with a direct privity relationship to a price-fixer has antitrust standing under Section 4 of the Clayton Act when it was injured by its participation in a market that was foreseeably affected by the defendants’ anticompetitive manipulation of a directly related market.

Department of Homeland Security v. Thuraissigiam
19-161
Issue: Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.

Samarripa v. Kizziah
19-164
Issue: Whether federal courts have the authority to impose partial filing fees on habeas petitioners.

Remington Arms Co. v. Soto
19-168
Issue: 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, which forbids “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

United States Agency for International Development v. Alliance for Open Society International Inc.
19-177
Issue: Whether – when in Agency for International Development v. Alliance for Open Society International Inc., the Supreme Court held that the First Amendment bars enforcement of a congressional directive that required the respondents, U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad, to “have a policy explicitly opposing prostitution and sex trafficking” as a condition of accepting those funds – the First Amendment further bars enforcement of that directive with respect to legally distinct foreign entities operating overseas that are affiliated with the respondents.

United States v. Briggs
19-108
Issue: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that 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.

United States v. Collins
19-184
Issue: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that 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.

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Ginsburg addresses first-year class at Georgetown Law

Ginsburg addresses first-year class at Georgetown Law

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.

Foremost from last term in Ginsburg’s view was Department of Commerce v. New York, in which the court blocked the federal government from adding a citizenship question to the 2020 census because, as Ginsburg emphasized, Secretary Wilbur Ross’ decision to add the question was “pretextual” and his justification “appeared to have been contrived.” Ginsburg also noted the government’s “extraordinary” request that the Supreme Court bypass its usual procedure and rule immediately on the case.

A few other cases – Gamble v. United States, Timbs v. Indiana and American Legion v. American Humanist Association – received brief mention, followed by a commentary on Rucho v. Common Cause and Virginia House of Delegates v. Bethune-Hill. Although Rucho placed partisan gerrymandering beyond the scope of federal courts, Ginsburg emphasized that Bethune-Hill, which concerned racial gerrymandering, was dismissed on standing grounds – suggesting that federal courts may still evaluate racial gerrymanders. She closed with a nod to Justice Elena Kagan’s “strong” dissent in Rucho and a declaration that “partisan gerrymandering unsettles the fundamental principle that the people elect their representatives, not vice-versa.”

One can read the tea leaves from Ginsburg’s remarks on the coming term to guess which cases she views as most important.

Mentioned first was New York State Rifle & Pistol Association Inc. v. City of New York, New York, a challenge to New York City’s restrictions on the transportation of personal firearms. Notably, Ginsburg made no mention of the mootness question. (New York City modified its law to redact the most contentious provisions after the Supreme Court granted cert, and the state has since barred future legislation reinstating those provisions; the city now argues that the case is no longer a live controversy and should be dismissed as moot.)

Ginsburg then turned to the workplace-discrimination cases. These cases concern whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination “on the basis of sex” – perhaps the most significant phrase of Ginsburg’s legal career, the title of a recent biopic and one which she was sure to quote – also bars discrimination on the basis of transgender identity (in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission) or sexual orientation (in Bostock v. Clayton County, Georgia).

Of the many criminal cases already on the Supreme Court’s docket this term, only Ramos v. Louisiana and Mathena v. Malvo earned nods. Ginsburg concluded with mentions of “two more cases attracting a lot of attention:” a religious-school funding case, Espinoza v. Montana Department of Revenue, and a group of cases concerning the Trump administration’s rescission of DACA, consolidated under Department of Homeland Security v. Regents of the University of California. Ginsburg wrapped up her remarks with a tongue-in-cheek understatement: “I look forward to the challenges ahead.”

She then sat with Treanor for questions. After engaging Ginsburg on her time as a law clerk and the role of law in the progression toward gender equality, Treanor posed questions pre-selected from members of the first-year class.

The first student asked Ginsburg whether she would like to weigh in on any cases the Supreme Court had declined to hear. Clarifying that the justices’ role is not “to right wrong judgments” but “to keep the law in the United States more or less uniform,” Ginsburg deflected, insisting that any question significant enough would inevitably return to the court. The justice emphasized that “when the court denies review, it stays nothing about the merits” of a case, but rather indicates a desire for “further percolation” of the issue presented.

The final question inquired what single amendment to the U.S. Constitution Ginsburg would enact if she had the power. Usually pensive, Ginsburg lost no time in responding, “An Equal Rights Amendment,” to loud applause from the audience. Why bother, Ginsburg asked? The justice pulled out a pocket Constitution to illustrate something that, without such an amendment, she currently cannot do: point her three granddaughters to a passage in our founding document that “explicitly says that men and women are equal under the law.”

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Friday round-up

Friday round-up

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.”

Briefly:

  • At CNBC, Tucker Higgins reports that “Supreme Court Justice Ruth Bader Ginsburg said Thursday she is eager to get back to business, appearing vibrant at a Washington event weeks after completing treatment for cancer.”
  • At CNN, Joan Biskupic reports that “Chief Justice John Roberts cast the deciding vote against President Donald Trump’s attempt to add a citizenship question to the 2020 census, but only after changing his position behind the scenes.”
  • In an op-ed for The New York Times, Linda Greenhouse explores some of the religion cases in the “queue of new appeals seeking the justices’ attention” and spotlights “an unusual dialogue emerging between the court’s most conservative justices and the religious right that has good reason to suppose that its moment is finally at hand.”
  • At SSRN, Jonathan Harkavy summarizes and comments on October Term 2018’s labor- and employment-law decisions.
  • At his eponymous blog, Ernie Haffner unpacks the Department of Justice’s argument in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which the court will decide whether federal employment discrimination law bars discrimination against transgender people, that “if Title VII requires employers’ actions to be sex-blind, then sex-based dress codes and single-sex bathrooms are both unlawful.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in this case.]
  • At Take Care, Kate Huddleston worries that Justices Samuel Alito’s and Neil Gorsuch’s opinions last term in The American Legion v. American Humanist Association, in which the court held that a large cross honoring World War I veterans on public land in Maryland does not the violate Constitution’s bar on establishing religion, “shift the Supreme Court’s decisions permitting prayer before state legislative sessions and town council meetings from the periphery of Establishment Clause jurisprudence to the core—seemingly allowing the exception for longstanding historical practice to swallow the rule by claiming that the exception has always been the rule.”

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

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Symposium: Dream deferred

Symposium: Dream deferred

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.

DACA has a strong legal foundation. In 1976 Sam Bernsen, then General Counsel of the Immigration and Naturalization Service, published a memorandum about the legal authorities behind prosecutorial discretion, pointing to the U.S. Constitution, immigration statute, court decisions and “inherent authority.” These legal authorities have been affirmed by subsequent administrations and applied to deferred action for individuals including victims of domestic violence and sexual assault, widows and widowers of U.S. citizens and those with serious medical conditions or family ties, to name a few.

The DACA policy enabled nearly 800,000 people to live outside of the shadows, work in a range of industries and go to school. According to one 2018 survey published by the Center for American Progress, 93 percent of DACA respondents currently in school said that DACA allowed them to pursue “educational opportunities that [they] previously could not.” This same survey showed that respondents had increased their earning power by 78 percent since receiving DACA. According to the Migration Policy Institute, about 9,000 DACA recipients are teachers or in similar educational fields and 14,000 are in healthcare-related fields. I have witnessed the enormous contributions those with DACA make in the classroom and our educational institutions.

Despite the tremendous success of DACA and its strong legal foundation, former Attorney General Jeff Sessions announced in a press conference on September 5, 2017, that DACA would end, calling DACA recipients “illegal aliens” and the policy an “unconstitutional exercise of authority by the executive branch.” One DACA recipient who used her lunch break to listen to Sessions’ speech shared her response with me: “Just hearing everything that he said knowing that that was such a lie, such an excuse, such bull … It was just … a pretty defeating, dehumanizing moment.”

How DACA ended was the subject of legal challenges in federal courts based in California, Maryland, New York and the District of Columbia, and ultimately resulted in nationwide injunctions reinstating DACA for those who have ever received it. Three of these courts concluded that ending DACA without a rationale was arbitrary and capricious under administrative law. This conclusion was also reached by two appellate courts.

The human impact of the termination on “DACA-mented” individuals, their families and our country has been significant. One DACA recipient I spoke to talked about the mental toll: “I think it’s not so much the effect of the policies that are being enacted, which are dangerous and poisonous to our democracy, but it’s the psychological warfare that we’re subjected to on a daily basis.” Another DACA recipient I spoke to worries less about himself and more about the younger generation of “dreamers” who were too young to request DACA before it was terminated. For those who risk losing their DACA or who were too young to request it, the end of DACA and failure of a legislative solution amount to a dream deferred.

The fate of DACA at the Supreme Court is uncertain and may hinge either on whether the court believes the case can be reviewed or on the legality of how DACA ended. Representing the government, the solicitor general has filed a brief arguing that DACA cannot be reviewed under an “arbitrary and capricious” standard because the choice to end DACA is committed to the absolute discretion of the Department of Homeland Security. In the alternative, the government has argued that DHS provided multiple grounds for ending DACA. The government proposes three reasons for upholding the department’s decision: 1) that the judicial outcome of an analogous deferred-action policy for parents known as DAPA, or Deferred Action for Parents of Americans, provides a basis for finding that DACA is unlawful; 2) that DACA creates an incentive for noncitizens to migrate to the United States through the southern border; and 3) that the department’s conclusion that DACA is “not just legally questionable but indeed unlawful” was correct.

DAPA was a deferred-action policy announced by Obama in November 2014 that would have enabled qualifying parents of Americans to request deferred action from the United States Citizenship and Immigration Services. Texas and other states challenged the program as unlawful. The case went from a district court to the United States Court of Appeals for the 5th Circuit to the Supreme Court. The Supreme Court deadlocked 4–4, leaving the 5th Circuit’s ruling barring implementation of the policy in place. DHS rescinded the DAPA memorandum on June 15, 2017.

The government’s arguments to the Supreme Court raise several concerns. First, the litigation in the DAPA case had nothing to do with DACA. Whether the never-operational DAPA policy was a lawful exercise of prosecutorial discretion is simply unrelated to the legal question about how the current administration terminated DACA. Furthermore, the government’s attempt to connect immigrants arriving at the southern border to the DACA policy is faulty. People arriving at the southern border are doing so in large part of the dangerous conditions back home, in my experience. By contrast, DACA recipients arrived in the United States at a young age, have lived in the United States for more than a decade and consider America home. Further, the government provides a flawed analysis for why DACA is unlawful, concluding without explanation that none of the statutory authorities that have long been interpreted to authorize prosecutorial discretion, and deferred action in particular, are valid. Finally, the government uses inflated numerical estimates for who might qualify for DACA to argue against the legality of the program. How many should qualify for DACA or any other deferred-action directive is a policy question, not a legal one. Previous administrations have employed deferred action and similar policies to protect groups of people and, as with DACA, have required the agency to assess each case on an individual basis.

Prosecutorial discretion is essential in any law-enforcement context and immigration is no exception. Because resources are limited, the government has to make decisions about whom to target for enforcement and whom to leave alone. Prosecutorial discretion has long been informed by compassion. Even before DACA, thousands of immigrants living in the United States were granted deferred action or another kind of prosecutorial discretion because of factors such as tender or advanced age, long-term residence or serving as a caregiver to a family member with serious medical needs. Regardless of how the Supreme Court rules in this case as a matter of law, the choice by the Trump administration to end DACA represents an extraordinary use of discretion that is morally troubling and out of sync with history and our humanity.

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Symposium: Will the court reach the merits…of DACA?

Symposium: Will the court reach the merits…of DACA?

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.

The Supreme Court has long recognized that it has an obligation to determine the presence or absence of its own jurisdiction, and that of the lower courts, even if the parties have not raised or argued the issue. It also has a bedrock obligation, as a court of law, not to order or give effect to that which is unlawful.

Here these obligations work together to bring the merits of DACA front and center. The second obligation means that, even if the plaintiffs “win” on rescission, the Supreme Court cannot reinstate DACA – if DACA is unlawful. Rather than give effect to an unlawful rule, the court must restore the last lawful regulatory state of affairs – which, if DACA is unlawful, was the status quo pre-DACA.

But the necessity of that restoration would have an impact on the court’s jurisdiction in these cases – indeed, it would obliterate it.

The state of regulation before DACA, of course, would be of no help to the plaintiffs; it would do nothing to redress their claimed injuries. Thus, even if the plaintiffs “win” on the rescission issue, they gain nothing – if DACA is unlawful. Under the Constitution, if the plaintiffs can gain nothing from their lawsuit, if their injuries cannot by redressed by it, they lack standing to sue. Federal courts have no jurisdiction under the Constitution to decide abstract questions that do not affect the parties before them. If plaintiffs will lose even if they win – as they will if DACA is unlawful – they have no business in federal court, and the federal courts have no business hearing their cases.

So if the plaintiffs lack standing, the court lacks jurisdiction, and should dismiss these cases – leaving the rescission of DACA in place.

The jurisdictional question, then, depends on the question of whether DACA is unlawful. There are numerous reasons for thinking that it is.

Famously, President Barack Obama said repeatedly (before DACA was issued) that he lacked the authority under the Constitution to grant an executive amnesty of DACA’s scope. No doubt he conceded this because immigration law requires that persons found to be unauthorized immigrants be put in removal proceedings. Of course, if an agency is underfunded, it may, and should, fulfill its statutory mandate as best it can within the constraints of its limited resources. But DACA was not created because of a lack of resources; DHS already spent scant-to-no resources removing noncriminal unauthorized immigrants who had been brought to this country as children, because it considered them very low priorities for removal.

Rather than being an adaptation to lack of resources, DACA reflected a policy judgment that its beneficiaries should be free to live and work in the United States without fear of removal. This policy judgment, however, was at odds with that of Congress, which had rejected a Dream Act more than once. Also – and fundamentally – if DHS can make so sweeping an exception to its mandate to remove unauthorized immigrants, there is no discernible limit to its authority to craft administrative amnesties, even much bigger ones than DACA. In no provision of law did Congress ever bestow such power on DHS.

Moreover, a major purpose of the Immigration and Nationality Act is to protect American workers. For example, the INA criminalizes the hiring of unauthorized immigrants to preserve jobs for American citizens. Nowhere in the INA does Congress give DHS the power to overthrow statutory protections for American workers by issuing work authorizations to unauthorized immigrants on a massive scale, as DACA does. To be sure, some have interpreted certain broad provisions in the INA to give DHS the authority to authorize work for any alien or class of aliens it chooses. But if so interpreted, these provisions provide no intelligible principle to guide the agency in the exercise of this authority, and so run afoul of the Supreme Court’s constitutional doctrine that Congress may not delegate limitless power to an agency.

DACA is also unlawful for a more mundane, even technical, reason: it did not go through the public notice-and-comment process required for substantive rules issued by agencies. DACA is a substantive rule because the memorandum creating it did not leave the agents who administer it any real discretion to grant or deny its benefits to those meeting the program’s criteria; rather, almost comically, agents were instructed to exercise their “discretion” by granting these benefits. As a substantive rule that did not go through notice and comment, DACA is a nullity.

In short, if a majority of the Supreme Court is inclined to believe that DACA is unlawful – for the reasons just sketched or for other reasons – the court must, in the course of exercising its duty to determine its own jurisdiction, assess DACA’s lawfulness or lack thereof. And if it concludes that DACA is unlawful, its only course will be to dismiss these cases for lack of jurisdiction.

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Event announcement: Constitution Day and start-of-term panels

Event announcement: Constitution Day and start-of-term panels

Courts and Culture: Examining the Establishment Clause post-Bladensburg and a Supreme Court Preview on the Future of Title VII
Monday, September 16, 12:30 p.m. ET at Jones Day in Washington, D.C.

The Alliance Defending Freedom and Jones Day will host a two-panel discussion on the establishment clause and religious liberty at the Supreme Court. The first panel will focus on last term and the American Legion decision, featuring ADF’s David Cortman, Mayer Brown’s Charles Rothfeld and Jones Day’s Kaytlin Roholt, moderated by the New York Times’ Adam Liptak. The second panel will look to next term and especially the Title VII cases, featuring ADF’s John Bursch and Goodwin Law’s Brian Burgess, moderated by SCOTUSblog’s Amy Howe. Click here for more info and to RSVP (space is limited). Click here to watch the livestream.

Court, Heel Thyself!
Monday, September 16, at 12:00 p.m. ET at The Heritage Foundation in Washington, D.C.

The Heritage Foundation has organized a discussion of recent proposals to modify the structure of the Supreme Court and the federal judiciary, with a focus on the significance of judicial independence. The panel will feature the Judicial Crisis Network’s Carrie Severino, Berkeley Law Professor John Yoo and Thomas Yipping of Heritage, moderated by Heritage’s John Malcolm. Click here for more info and to RSVP.

Supreme Court Preview of the 2019-2020 Term
Thursday, September 26, at 12:00 p.m. ET at The Heritage Foundation in Washington, D.C.

The Heritage Foundation will also host a preview of major cases in the upcoming Supreme Court term on issues including the Affordable Care Act, DACA, Title VII, religious school funding and the Second Amendment. The panel will feature Paul Clement of Kirkland & Ellis and Sarah Harrington of Goldstein & Russell, moderated by Heritage’s Elizabeth Slattery. Click here for more info and to RSVP.

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Court issues December calendar

Court issues December calendar

The Supreme Court issued its calendar for the December sitting today. The justices are scheduled to kick off the sitting, which begins on Monday, December 2, with the oral argument in the challenge to New York City’s ban on transporting guns outside the city’s limits. But it’s not clear that the oral argument will actually take place: On October 1, the justices will consider whether to dismiss the case because the city has amended its regulations (and the state has also changed its gun licensing laws). Between December 2 and December 11, the justices will hear oral arguments in a total of 15 cases over 12 hours, addressing a wide variety of issues.

Here is the full list of cases scheduled for the December sitting, along with a brief description of the issue involved in each case:

New York State Rifle & Pistol Association v. City of New York (Monday, Dec. 2): Whether the city’s ban on taking a handgun outside city limits violates the Second Amendment.

Georgia v. Public.Resource.Org (Monday, Dec. 2): Whether works that lack the force of law, such as annotations to a state’s code, can be copyrighted.

Rodriguez v. Federal Deposit Insurance Corporation (Tuesday, Dec. 3): How courts should determine ownership of a tax refund paid to an affiliated group.

Atlantic Richfield Co. v. Christian (Tuesday, Dec. 3): Whether pollution clean-up costs beyond the remediation ordered by the federal Environmental Protection Agency are pre-empted by federal law.

Intel Corp. Investment Policy Committee v. Sulyma (Wednesday, Dec. 4): How to apply the statute of limitation for some cases alleging violations of the Employee Retirement Income Security Act.

Banister v. Davis (Wednesday, Dec. 4): Whether and when a motion to alter or amend a judgment should be treated as a second or successive petition for habeas corpus.

Guerrero-Lasprilla v. Barr and Ovalles v. Barr (Monday, Dec. 9): Whether courts can review a request for equitable tolling of the deadline to file a motion to reopen as a matter of law.

Thryv v. Click-To-Call Technologies (Monday, Dec. 9): Whether federal patent law allows an appeal of a decision to institute a procedure to challenge the validity of a patent after a finding that the one-year time bar does not apply.

Maine Community Health Options v. United States, Land of Lincoln Mutual Health Insurance v. United States and Moda Health Plan v. United States (Tuesday, Dec. 10): Whether Congress can avoid a promise to pay health insurers for losses that they have already suffered by enacting appropriations riders that restrict the sources of funds available to pay the government’s obligations.

Holguin-Hernandez v. United States (Tuesday, Dec. 10): Whether a criminal defendant must formally challenge the length of a sentence when it is announced to be able to appeal it.

Monaskey v. Taglieri (Wednesday, Dec. 11): How an appeals court should review a district court’s determination of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction, and how to establish habitual residence in the case of an infant.

McKinney v. Arizona (Wednesday, Dec. 11): Whether current law must apply when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Georgia v. Public.Resource.Org. However, I am not affiliated with the firm.]

This post was originally published at Howe on the Court.

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Thursday round-up

Thursday round-up

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.”

Alex Swoyer reports at The Washington Times (via How Appealing) that a “Christian florist, who refused to participate in a same-sex wedding, has again requested that the Supreme Court take her case, filing a new petition Wednesday.” At the Washington Blade, Chris Johnson reports that the florist “[c]ontend[s] the state attorney general had clear anti-religion bias in pursuing the case against her.”

Briefly:

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

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Symposium: The government’s dissonant DACA drumbeat

Symposium: The government’s dissonant DACA drumbeat

Melissa Crow is a senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project.

On November 12, the Supreme Court will hear argument in three consolidated cases – Department of Homeland Security v. Regents of the University of California, Trump v. NAACP and McAleenan v. Batalla Vidal – that challenge the Trump administration’s decision to end Deferred Action for Childhood Arrivals (DACA).

DACA is an Obama-era initiative that provides temporary relief from deportation and work authorization to certain young people who were brought to the U.S. as children. The diverse panoply of parties involved in these proceedings – including affected individuals, states, corporations, universities, nonprofit organizations and labor unions, among many others ­– illustrates the far-reaching impact of DACA and the critical importance of the issues at stake.

The current controversy dates back to September 2017, when then-Acting Secretary of Homeland Security Elaine Duke – upon legal advice from then-Attorney General Jeff Sessions that DACA was “an unconstitutional exercise of authority by the Executive Branch” and that it had been implemented “without proper statutory authority” – rescinded the program with no prior notice.

Numerous lawsuits ensued, and district courts in California, New York and the District of Columbia either enjoined or vacated the U.S. Department of Homeland Security’s decision on a nationwide basis. Relying primarily on its previous argument that the decision to terminate the DACA program was within DHS’ discretion and thus not subject to judicial review under the Administrative Procedure Act, the government lost no time in pursuing appeals.

The U.S. Court of Appeals for the 9th Circuit was the first to rule. Hearkening back to Marbury v. Madison, the 9th Circuit rejected the government’s position in no uncertain terms: “The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose ‘province and duty’ it is ‘to say what the law is.’”

Finding further that the respondents were likely to succeed on the merits of their claim that DHS’ decision was arbitrary and capricious, and that they had plausibly alleged that the rescission was motivated by discriminatory animus against Latinos, and Mexicans in particular, the 9th Circuit affirmed the U.S. District Court for the Northern District of California’s preliminary injunction. Judge John Owens concurred in the judgment on the basis that the plaintiffs had demonstrated a likelihood of success on the merits of their equal protection claim. In addition to granting certiorari in the 9th Circuit case, the Supreme Court took the unusual step of granting certiorari before judgment in the New York and District of Columbia cases.

The government insists before the Supreme Court that DHS’ decision to rescind DACA was “committed to agency discretion by law” and thus unreviewable under Section 701(a)(2) of the APA. This argument is rooted primarily in Heckler v. Chaney, in which the Supreme Court held that the U.S. Food and Drug Administration’s decision not to pursue an enforcement action challenging the unapproved use of certain drugs in lethal injections was “committed to agency discretion.”

However, Chaney left open the question of the reviewability of a nonenforcement decision based solely on the agency’s belief that it lacked jurisdiction to act. And as the Supreme Court’s subsequent decision in City of Arlington v. FCC confirms, decisions regarding the scope of an agency’s statutory authority to take a particular action are subject to judicial review. Because DHS’ rescission decision was premised on DACA’s purported illegality, it falls outside the scope of Chaney and is presumptively reviewable. As Judge John Bates of the U.S. District Court for the District of Columbia aptly noted in NAACP v. Trump, “an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.”

If the Supreme Court finds that DHS’ decision to rescind DACA is judicially reviewable, it will address the legality of the agency’s action. In this regard, the government contends that it had valid policy reasons for ending DACA, with the result that its decision was not arbitrary and capricious. In fact, the government’s so-called “policy rationales” were proffered only in the context of litigation and, as both the 9th Circuit and the U.S. District Court for the Eastern District of New York found, are thus properly discounted as “post-hoc rationalizations.”

Some of these “rationalizations” strain credulity. For example, the government argues that ending DACA would discourage the flow of undocumented migrants to the United States. Yet only individuals who entered the U.S. by 2007 are eligible for DACA. The government contends further that broad decisions regarding immigration enforcement are better left to Congress. But Congress’ failure to act was the principal reason that DHS established DACA in the first place, and – as the D.C. district court noted – the government failed to explain why DHS has discretion to determine which branch of government is best placed to address a particular policy issue. Moreover, the government gives short shrift to DACA beneficiaries’ reasonable reliance on the ability to renew their benefits and on the government’s representation that any personal information they submitted with their applications would not be used for enforcement purposes.

Relying on somewhat circular reasoning, the government also seeks to defend its rescission based on the purported illegality of DACA. Through what the D.C. district court termed “an incongruous reference” to the U.S. Court of Appeals for the 5th Circuit’s decision (subsequently affirmed by an equally divided Supreme Court) rejecting Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) – a deferred-action program that would have benefited noncitizen parents of U.S. citizens or lawful permanent residents – the government implies that DACA would meet the same fate. However, while DAPA arguably conflicts with an existing provision of the Immigration and Nationality Act that allows certain undocumented parents to derive lawful immigration status through their children, DACA has no such parallel in the INA. And, despite the government’s assertions to the contrary, the record includes ample evidence that DACA determinations reflect individualized case-by-case decision making, and that a significant number of applications have been denied in the exercise of DHS’ discretion. Thus, DACA is not a substantive rule that required notice-and-comment rulemaking.

The stakes in this case are incredibly high. Its impact on the nearly 800,000 DACA beneficiaries who have built their lives in this country for at least 12 years – as well as its impact on their families and communities – is indisputable. The case may also determine the viability of future deferred-action programs and, more generally, the permissible scope of executive action in the immigration arena. Drum roll, please!

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