• September 25, 2015
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    I recently watched an oral history show on C-SPAN. A man named Kurt Klein, a German Jew who was able to come to the United States in the late 1930s and then served in the U.S. military during World War Two, described what it was like to liberate a concentration camp in 1945. He said (I am paraphrasing) that it was difficult to understand how human beings could have let something like this happen.

    That is an essential lesson one ought to learn from the Holocaust: what does it mean for us to be human, and what obligation do we have, as human beings, to prevent the suffering of other human beings?  As a practical matter, this forces us to consider whether the laws we have on the books are sufficient to meet our obligations to others as human beings.  If our laws are not up to the task, then they must be revised.

    The immigration crisis in Europe most recently forces us to answer the question of what it means to be human. More than 160,000 refugees from Syria and other countries are in a life or death struggle.  We have to confront the horrifying image of a toddler washed up on a beach in Turkey, his slightly older brother and his mother also dead. 

    In the Czech Republic, police reportedly took refugees off trains headed for Germany and written registration numbers on their arms in permanent ink. This is a sickening image. Hungary’s leader, Viktor Orban, has declared his country will keep immigrants out. Orban explains that he doesn’t want Muslims in Hungary—western Europeans are free to give them a home.  Refugees ended up sleeping in a Budapest train station where international trains were not available. This made it hard to understand Orban’s statement—were these people free to get to western Europe if they possess the power of teleportation? Hungary later provided buses to take some refugees to Austria, leaving others to walk to the border on their own.  Reports indicate that Hungary is sending refugees directly to the Austrian border on “special trains”. But there are also reports that Austria is introducing border controls. Meanwhile, The New York Times reports that “[s]tarting Tuesday, Hungary will classify unauthorized entry into the country as a criminal offense, punishable by up to three years in prison.”

    These people crowded onto trains, buses and boats, desperate to find safety somewhere in Europe, are human beings. They are mothers, fathers, small children, grandparents. Why then are they being treated “like animals," as one Syrian student put it?  I’d argue even animals shouldn’t be treated this way, but the point is clear: these are people who are not being treated as human beings.

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Texas challenge to DAPA

    In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities.  As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.

    The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states.  Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide.  Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers.  Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place.  To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.

  • May 21, 2015
    Guest Post

    by Ilya Somin, Professor of Law, George Mason University School of Law; author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).

    The Obama administration’s immigration policy deferring deportation for more than four million illegal immigrants has been the focus of extensive constitutional debate since it was announced last fall. One conservative federal trial judge has ruled that the policy is unconstitutional, and another has concluded that it violates the Administrative Procedure Act, on the basis of arguments that suggest it is likely unconstitutional as well.  Despite these rulings, the Obama policy is constitutional, and appellate courts would do well to uphold it. Ironically, the case for it is particularly strong if we accept two principles that many of the policy’s conservative critics strongly support in other contexts: the unitary executive and limiting the scope of congressional power  as close as possible to its original meaning. At the same time, the Obama policy highlights the dangers posed by executive discretion in a world where there is far more federal law than any administration can effectively enforce.

    In many ways, the administration policy is simply an exercise of longstanding executive discretion in deciding when to enforce federal laws. There are more than 11 million illegal immigrants in the United States, and no administration is likely to deport more than a small fraction of them. Similarly, scholars estimate that a majority of Americans have violated federal criminal law at some point in their lives. Only a small fraction of these offenders are ever prosecuted. The executive generally has broad discretion to decide which suspected lawbreakers to go after and which ones to ignore.

    Many of  the administration’s critics claim that, by choosing not to enforce deportation against a large category of aliens, Obama is violating the Take Care Clause of the Constitution, which requires the president to “take care that the laws are faithfully executed.” But whatever else that Clause might mean, it surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

    Both judicial rulings against the Obama policy emphasize that it goes beyond ordinary executive discretion because it replaces “case by case” discretion with a general rule imposed by the president that categorically excludes broad categories of aliens from deportation. The categories in question cover numerous undocumented migrants who are either parents of U.S. citizens or permanent residents, or entered the U.S. as children. As Judge Arthur Schwab put it in the first ruling, the policy “provides for a systematic and rigid process by which a broad group of individuals will be treated differently from others… rather than case-by-case examination.” But the difference between case by case examination and categorical rules is one of degree rather than kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense or the danger posed by the offender. And if such general rules can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president. After all, lower-level law enforcement officials are ultimately merely the president’s agents and subordinates.

  • May 7, 2015
    A Novel
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

  • April 6, 2015
    Guest Post

    by Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law; Professional Lecturer in Law, George Washington University Law School

    The area near the border between Texas and Mexico is a dangerous one, especially if you are a liberal Democrat from the North trying to deal with about 11.3 million individuals who are not lawfully in the United States, when the budget and the personnel to operate existing systems will not enable you to deport more than 400,000 a year. And judging from the February 16 opinion in Texas v. United States by District Judge Andrew Hanen, who sits in the Brownsville Federal Court located there, the courthouse is not a safe place to be either.

    Judge Hanen’s ruling, which runs 123 pages and was followed by a three-page preliminary injunction, has so much in it that it is impossible to do more in an essay like this than to summarize the key points. Meanwhile, the Federal Government has appealed and is seeking a stay in the Fifth Circuit, which will be heard on April 17. But first, let’s start with what Judge Hanen did and then take a look at the appellate posture. 

    The first step is to recognize who in the Executive Branch did what that precipitated the lawsuit. Although the popular notion is that it was a decision of President Obama that was being challenged, the President did not issue an executive order or anything else to bring about these changes: he left those to the Secretary of Homeland Security, Jeb Johnson.  This choice may actually matter here because the flaw that Judge Hanen identified – failure to comply with the Administrative Procedure Act (APA) – applies only to agency officials, which excludes the President. 

    Secretary Johnson, acting with at least the president’s blessing, if not at his direction, created a new program for parents of children lawfully in the United States – Deferred Action for Parents of Americans and Lawful Aliens (DAPA) – and expanded the existing program for children – Deferred Action for Childhood Arrivals (DACA).  Each has two major components.  First, they direct agency officials not to deport otherwise deportable aliens who fall into certain categories whose presence in the U.S. does not present significant dangers to the country, mainly parents of others authorized to be in the U.S. Second, they authorize the estimated 4.3 million individuals who fall in each category to receive federal work authorizations, which aliens need to obtain a legal job, as well as other benefits that flow from being authorized to work. The legal issues for the two parts are different, but before turning to those questions, there is the ever-present and often devilish issue of standing or, in lay language, what says you have a right to sue over this claim?