ACSBlog

  • November 21, 2014
    Guest Post

    by Lisa HeinzerlingJustice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. The author was a political appointee at the Environmental Protection Agency from January 2009 to December 2010. She served on the EPA Presidential Transition Team in 2008.

    The Environmental Protection Agency is under court order to issue, by December 1, a proposal to retain or revise the national air quality standards for ground-level ozone. Scientific studies have linked ozone, also known as smog, to a variety of adverse effects on public health and welfare. EPA's expert staff and its outside scientific advisors have recommended, based on this scientific evidence, that EPA set new, stronger standards for ozone. The Clean Air Act requires that air quality standards – "primary" standards for public health, "secondary" standards for public welfare – be set at levels "requisite to protect" public health and welfare. A central question for the proposal to be issued by December 1 is whether the current air quality standards for ozone, set at 75 parts per billion of ozone in the ambient air, adequately provide such protection.

    At the moment, EPA's preferred approach to the ozone standards awaits White House clearance. EPA has sent a regulatory package – likely including, as is customary, the proposed standards, a formal explanation of EPA's choices, and an economic analysis of the proposal – to the White House for review. Under executive orders issued by Presidents Bill Clinton and Barack Obama, the President has asserted the authority to review significant agency rules like the ozone standard and to reject or revise them if they are not consistent with his policies or priorities. President Obama exercised this self-given power previously in the context of ozone, when in 2011 he ordered then-EPA Administrator Lisa P. Jackson to withdraw stronger, revised national air quality standards for ozone. As I will explain, President Obama's past exercise of power hangs over the current decision whether to revise the ozone standards.

    Before President Obama ordered Administrator Jackson to withdraw the revised ozone standards she had developed, the EPA under Administrator Jackson had been working on the revised standards for years, indeed since the day President Obama took office. Revision was necessary, in EPA's view, because standards set during the administration of President George W. Bush had departed from the scientific evidence indicating that stronger rules were necessary to protect public health and welfare. Indeed, EPA's scientific advisors on air quality had reacted to the Bush-era standards by issuing a pointed, unsolicited rebuke, stating that the advisors did not endorse the Bush standards. Strengthening the Bush-era ozone standards was a core EPA priority in the early days of the Obama administration, offering an opportunity both to protect public health and welfare and to return the agency to scientifically sound decision making. No one would have guessed, then, that President Obama would eventually order Administrator Jackson to back off and leave the Bush-era standards in place. But that's what happened.

  • November 21, 2014

    by Caroline Cox

    At Hamilton and Griffin on Rights, Thomas B. McAffee explains how religious freedom arguments about marriage equality miss the mark.

    Katie McDonough of Salon discusses how, in light of the growing number of states introducing abortion restrictions, women have begun sharing their abortion stories.

    Peter Beinart looks at President Barack Obama’s immigration announcement in The Atlantic, asserting that the executive order helps fulfill his promise to progressives.

    In the Huffington Post, Fred Wertheimer argues that Citizens United will go down in history as one of the worst Supreme Court decisions. 

  • November 20, 2014
    Guest Post

    by Adam Cox, Professor of Law, New York University School of Law, and Cristina Rodriguez, the Leighton Homer Surbeck Professor of Law, Yale Law School

    *Professors Cox and Rodriguez have commenced a symposium at Balkinization, which we're cross-posting.
     
    Tonight, President Obama announced sweeping administrative reform of immigration law. His efforts raise important questions about the legal basis for his actions and its implications for the future of immigration law and the separation of powers.
     
    Over the next several days, we will convene an online symposium here, on Balkinization, to discuss and debate these issues with a group of leading immigration law and constitutional law scholars and litigators.  While much ink has been spilled in recent months over the legality of administrative immigration relief, much of that writing has been necessarily speculative.  Now we know the basic facts.  The President’s administration will exercise prosecutorial discretion to defer the removal of many parents of U.S. citizens and lawful permanent residents, making them eligible for work authorization for up to three years at a time.  This action is estimated to encompass 3.3 million unauthorized immigrants.  When combined with the last round of administrative relief—the Deferred Action for Childhood Arrivals Initiative—roughly 5 million persons, or 40 percent of the unauthorized population, may be affected.
     
    As the President’s announcement made clear, however, there will be limits to his exercise of discretion.  The parents of DACA recipients will not be included.  This is an extremely important fact—not just as a political matter, but also, potentially, as a legal one.  Over the course of recent debate, writers on all sides of the issue have struggled mightily to avoid a central question about the exercise of prosecutorial discretion in immigration law: how far is too far?  Opponents have argued that the president has crossed the line into unconstitutionality; defenders have contended that he has not. But almost no one has been willing to say where that line is located.  Tonight that changed.  An opinion from the Office of Legal Counsel, made public by the administration, lays out the legal basis for the President’s actions and provides scholars with new theories of executive power and prosecutorial discretion to explore.  Importantly, that opinion concludes that, while the President has authority to grant relief to the parents of US citizens and LPRs, the President lacks legal authority to grant such relief to the parents of DACA recipients.
     
    We are among those who believe the basic parameters of executive discretion in immigration law permit the President to take the steps he has.[1] But the OLC opinion raises important questions about the limits of discretion, as well as a new gloss on the legal issues—the legal claim that the President’s actions are consistent with congressional priorities as reflected in the Immigration and Nationality Act.  
     
    The combination of the President’s sweeping action with an official government defense of the program’s legality—something that did not accompany DACA—makes now a crucial moment to discuss two fundamental questions that have long been embedded in the debate over administrative relief.  First, the question of scope: of how the size and composition of the group offered administrative relief bears on relief’s legality.  Second, the question of how the form of relief—that is, the precise benefits that are conferred through administrative action—affect its legality?
     
    These and other questions will be ones that we and the other symposium participants will engage and debate in the coming days.

     

     
  • November 20, 2014

    by Caroline Cox

    Boer Deng and Dahlia Lithwick report in Slate on the upcoming Texas execution of a profoundly mentally ill man.

    In The Washington Post, Katrina vanden Heuvel provides a hopeful vision of criminal justice system reform.

    In The New York TimesMichael D. Shear previews President Obama's upcoming announcment on his executive action on immigration. 

    Ian Millhiser argues at Think Progress that the Supreme Court has previously said that President Obama has the necessary power to issue his immigration order.

    At Vox, Sarah Kliff profiles Michael Cannon, the ardent Obamacare opponent who has led the new legal attack on the law. 

    Mychal Denzel Smith writes for The Nation that a failure to indict Darren Wilson will not stop the movement against police violence in the United States.

  • November 19, 2014

    by Katie O’Connor

    Throughout this week, individuals and organizations around the country observe Transgender Awareness Week to help raise the visibility of transgender and gender non-conforming people and to address the issues these communities face. As part of that effort, ACS has released a new Issue Brief, “The Transgender Tipping Point: An Overview for the Advocate,” in which Dr. Jillian T. Weiss surveys the laws affecting the transgender community and offers guidance to advocates who seek to expand the legal protections provided to transgender people.

    There are approximately 700,000 transgender people in the United States, but until very recently they have been considered strangers to the law. For decades, courts consistently denied protections against discrimination for transgender people. It was not until 1989, in the case of Price Waterhouse v. Hopkins, that the U.S. Supreme Court acknowledged that gender stereotyping constitutes unlawful sex discrimination. Since then, advocates have used laws prohibiting sex discrimination to protect people against discrimination based on transgender status, and courts have slowly become receptive to such cases.

    More recently, cities, states and the federal government have begun to explicitly protect transgender people against discrimination in the areas of employment, education, housing, health care and marriage, among others. Laws that once prohibited discrimination based on sex, race or religion have been amended to protect against discrimination based on sexual orientation and gender identity or expression.