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  • April 18, 2016

    By Nanya Springer

    Acting on a complaint filed through its web site, the Voting Rights Institute has asked the U.S. Department of Justice to investigate a claim of voter suppression in Alabama. Willie Williams, a Daphne, Ala., resident, says the city reduced polling locations from five to two in heavily black neighborhoods, reports Elizabeth Lauten at Alabama Today.

    In Newsweek, ACS Board member Paul Smith argues the law should respect the religious beliefs of business owners “without disregarding the core interests of employees who have different beliefs.”

    The U.S. Court of Appeals for the Second Circuit overturned Vergara v. California late last week, reinstating tenure and other job protections for public school teachers and handing labor unions a major victory, report Howard BlumeJoy Resmovits and Sonali Kohli at the Los Angeles Times.

  • April 15, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Lawauthor of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015).                         

    On November 20, 2014, President Obama announced two deferred action programs. One extends a program known as Deferred Action for Childhood Arrivals, or “DACA.”  The other creates a new policy known as Deferred Action for Parents of Americans and Legal Residents, or “DAPA.” Despite the fact that deferred action is a longstanding tool in immigration with a rich source of law and history, the state of Texas and 25 other states filed a lawsuit against the Administration to challenge the legality of these programs. The case, United States v. Texas, is the subject of an oral argument at the U.S. Supreme Court on April 18, 2016. The Court will hear arguments on four questions of law. Legal questions over the authority to exercise discretion and whether the plaintiffs have “standing” to bring this challenge have been analyzed extensively by scholars. This article discusses one of those issues – whether the updated DACA and new DAPA directives were legally required to undergo “notice and comment rulemaking” under the Administrative Procedure Act (APA).

    The plaintiff-states have argued that rulemaking is required under the APA. For certain rules, section 553 of the APA requires agencies to engage in formal rulemaking, where the government publishes a notice of the proposed rule and the parties then provide input primarily through the submission of written comments within a specified time period. Recognizing that the government would be unable to function efficiently if all rules required this lengthy and elaborate procedure, section 553 exempts "general statements of policy" from the notice and comment rulemaking requirement. The Supreme Court has held that "general statements of policy" include agencies' announcements as to how they plan to exercise discretionary powers going forward.

    In the memorandum announcing DAPA, the Secretary of Homeland Security explicitly instructed U.S. Citizenship and Immigration Services (USCIS) officers to assess the facts of each individual case and to exercise discretion even in cases where all the threshold criteria – some of which are themselves discretionary – have been met. The challengers argue that this is a pretext and that in practice USCIS officials will be pressured into approving DAPA requests mechanically. To prove this, Texas has relied on the low rate of denials among recipients of an earlier program, DACA 2012.

    This rationale is flawed. First, the DAPA program has discretion built into it as confirmed by the program’s actual requirement that the individual “present no other factors, in the exercise of discretion, that makes the grant of deferred action inappropriate.” Second, DACA requestors are a highly self-selected group. Moreover, the DAPA program has not even begun, so there is no evidence to show that employees are not using discretion, assuming of course the test even rests on the discretion exercised by boots on the ground as opposed to the Secretary of DHS, a point reasonably questioned by scholars. There is no basis for assuming that the DAPA approval rates will mimic those for DACA.

  • April 15, 2016
    Guest Post

    by Harry Baumgarten, Partner Legal Fellow, Voting Rights Institute

    In early March, the Daphne, Ala., City Council voted to reduce the number of polling places in the city from five to two, including eliminating existing polling locations in areas of the city with black population concentrations. Fewer polling places often lead to longer wait and travel times, burden the ability of voters to cast ballots, and discourage people from voting. The plan was opposed by African American civic leaders, but narrowly passed in a 4-3 vote.

    That very same day, the Daphne City Council also approved a mid-decade re-redistricting plan whose impact on the black community is at best unclear, since the city does not appear to have undertaken the appropriate review of the plan’s effects on the black voting age population in each district and its impact on black voting strength. Redistricting plans can sometimes dilute minority voting strength and, when they do, violate Section 2 of the Voting Rights Act.

    The Voting Rights Institute sent a letter this week to the Department of Justice calling on it to investigate the Daphne City Council’s latest measures and to take appropriate action.

    This election, we continually hear reports of voters being harmed thanks to new measures, like this one in Alabama, which make it more difficult to vote.

    In North Carolina, for example, the state’s new Voter ID law went into effect for the first time during its March 15 primary, reportedly disenfranchising 218,000 registered voters in the state who do not have an acceptable form of government-issued ID. This included U.S. Senator Richard Burr (R-NC), who had to cast a provisional ballot because he didn’t have an acceptable form of identification.

  • April 15, 2016

    by Jim Thompson

    Microsoft filed suit against the U.S. Department of Justice Thursday, challenging the legal process used by DOJ to obtain secrecy orders which bar the company from notifying users when the government obtains a warrant to read their emails, says Steve Lohr in The New York Times.

    The U.S. Court of Appeals for the Sixth Circuit ruled Wednesday that the government may gain warrantless access to cell-site location information—time-stamped location data logged with cell phone towers—without violating the Fourth Amendment prohibition against warrantless search and seizure, reports Robinson Meyer in The Atlantic.

    The parties in Zubik v. Burwell this week filed supplemental briefs in response to the Supreme Court’s earlier request, potentially reaching a compromise, but concern that a resolution will encourage further activist litigation by conservative groups persists, writes Jay Michaelson in The Daily Beast.

    In The Atlantic, frequent ACS speaker Garrett Epps opines that voters can resolve the Supreme Court stalemate. 

  • April 14, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law at Georgetown University Law Center

    *This post originally appeared on the Center for Progressive Reform Blog

    Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone – not its purposes, not its legislative history – should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction – or at least what he deemed the valid ones – as a way of limiting the power of judges by setting rules for their interpretation of statutes. Yet he also warned, in a 1997 book, against "presumptions and rules of construction that load the dice for or against a particular result." He worried that such "dice-loading" rules might effect "a sheer judicial power-grab." 

    It is striking, therefore, that in one of his last majority opinions for the Supreme Court, Justice Scalia went out of his way to create such an interpretive rule. Writing for a 5-4 majority in Michigan v. Environmental Protection Agency(EPA), he found that EPA had erred in declining to consider costs in determining that regulation of hazardous air pollutants – such as mercury – from power plants was "appropriate and necessary" under section 112 of the Clean Air Act. 

    Justice Scalia's reasoning went beyond the statutory provision and agency regulation at hand and suggested that agencies' purportedly general practice of considering costs in deciding whether to regulate had made the interpretive default one in which agencies must consider cost in order to engage in "reasonable regulation." In Michigan v. EPA, in other words, Justice Scalia created a brand-new, dice-loading, anti-regulatory canon of statutory construction. 

    The lower courts have begun to apply this canon with gusto, and in cases far removed from section 112 of the Clean Air Act. In the biggest of these cases so far, MetLife v. Financial Stability Oversight Council (FSOC), Judge Rosemary Collyer of the federal district court in Washington, D.C. relied heavily on Michigan v. EPA in finding that the FSOC had erred in determining that the insurance giant MetLife was a systemically important financial institution – or "too big to fail" – because it had not considered the costs of this designation to MetLife.