President Obama

  • February 17, 2016
    Guest Post

    by William Marshall, the William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law; Marshall is also a member of the ACS Board of Directors.

    I understand that some have vehemently criticized Senator McConnell for proclaiming that “[t]he American people‎ should have a voice in the selection of their next Supreme Court Justice.” But Senator McConnell is right. The American people should have a voice in the selection of Supreme Court justices. And, as long as we are on the subject, we might also note that the American people should have a voice in the selection of judges appointed to the lower courts.

    The problem is that Senator McConnell has apparently forgotten that the American people have already exercised this right. In 2012, they elected Barack Obama President of the United States. This means that the American people have already voiced their decision that Barack Obama, under Article II § 2 of the United States Constitution should, among his other duties and obligations, “nominate Judges of the supreme Court.”

    It is really that simple. So simple, in fact, that John Adams, the second president of the United States, saw no problem in appointing John Marshall to be the Chief Justice of the Supreme Court even after Thomas Jefferson defeated Adams in the election of 1800. So simple that the United States Senate in 1801 confirmed Adams’ nominee event though Jefferson was only weeks away from assuming office. So simple that in 2016, no presidential candidate from either party has even remotely suggested that he or she would not nominate a candidate to the Supreme Court if a vacancy arose during his or her last year in office. (Where else has there been such unanimity in this race?)

    The contrary conclusion that a president should abrogate his duty to appoint judges at the end of his term simply cannot be squared with the Constitution. Article II sets the term of the presidency at four years; not three years, not three years and a quarter, and not three years and one half. The Twenty-Second Amendment to the Constitution imposes a two-term limit on the presidency – it does not impose a mid-term limit. Neither Article II nor Amendment XXII (or for that matter any other constitutional provision) suggests or implies that some presidential powers should be exercised until the president’s last day in office while others should be abandoned months or years before.

    Few constitutional questions are this easy. The president appoints Supreme Court justices, and the Senate provides advice and consent. Both should start doing their jobs.

  • January 21, 2016
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Texas’ lawsuit against the Obama administration over its proposed new immigration regulations adds one more important public policy issue to the Court’s term which already has abortion, affirmative action, voting rights, and freedom of speech and religion on its agenda. This battle over immigration policy, however, does not belong in federal court because Texas should not be allowed to turn what is essentially a political controversy between Republicans and Democrats over immigration reform into a federal case.

    The Supreme Court has long required every plaintiff in federal court, including individuals, corporations, and the states, to suffer a personal injury caused by the defendant that can be redressed by the Court. This requirement of injury, known as standing, is a constitutional prerequisite to jurisdiction that cannot be waived by the parties or the Court. The Justices have repeatedly said that standing is necessary to maintain the appropriate separation of powers between unelected, life tenured federal judges and the elected branches of government.

    President Obama’s new immigration regulations, collectively known as DAPA, seek to change the immigration status of approximately four million undocumented aliens who are parents of children who are either legal citizens or legal resident aliens. Texas argues that only Congress has the power to alter the legal status of those immigrants.

    Texas may disagree strongly and sincerely with the President’s policy and/or think such a policy is illegal, but it may only challenge that policy in federal court if it has suffered an injury sufficient to satisfy the Court’s standing doctrine. The primary injury Texas has alleged in this lawsuit is that it will incur increased expenses because, once the regulations go into effect, Texas will feel obliged to provide driver’s licenses at reduced costs to some people with altered immigration status under DAPA. Yet, nothing in DAPA implicates the manner in which Texas provides driver’s licenses to its citizens. The proposed regulations leave all issues relating to Texas driver’s licenses, including their costs, up to Texas.

    Texas also argues that, even though it has the final decision on whether to grant driver’s licenses to DAPA beneficiaries, the need to change or reconsider its current policies gives it sufficient injury to support its lawsuit. Texas also argues that it will incur additional expenses in a host of different ways including “healthcare, law-enforcement, and education costs,” if DAPA goes into effect.

    Texas’ argument fails to support standing because it would allow any state to sue the federal government every time either Congress or the president increases or decreases the number of legal immigrants in this country.  Whenever the federal government changes immigration requirements, both the states’ expenses (in terms of its services) and revenues (through taxes now collected from more legal residents) “may” go up or down. But changes in Texas’ public policy because of those shifts remain completely up to the State of Texas.

    If the states could sue the federal government every time either Congress or the president passes legislation that alters how Texas manages its own public policy due to the number of people lawfully in the state, virtually all federal policy (beyond immigration law) will be transferred from elected officials to federal judges. The very purpose of the standing doctrine is to prevent that transfer of power.

    Texas relies on the Court’s 5-4 decision in Massachusetts v. EPA where the justices allowed Massachusetts to challenge decisions made by the EPA relating to global warming which allegedly harmed the coastline in that state. But, in that case Massachusetts asserted that its own sovereign property was being damaged by allegedly illegal federal policies. In this case, Texas remains sovereign over all of its internal policies and all of its property.

  • January 19, 2016
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law at Santa Clara University. Professor Gulasekaram teaches constitutional law and immigration law. He is also the co-author of the recently published book, The New Immigration Federalism (Cambridge Press).

    A Supreme Court term already loaded with high-profile cases on unions, voting representation, abortion, and affirmative action just added another blockbuster. The Court’s decision to hear United States v. Texas, the challenge to President Obama’s 2014 Deferred Action for Parental Accountability program (DAPA) by 26 states or state officials, will have far-reaching consequences for both the future of immigration enforcement and the power of states to upset those policies. In resolving the case, the Court holds in the balance the lives and livelihoods of an estimated five million persons, nearly half of the current undocumented population of the United States.

    The program has been on hold since a federal district court judge in Texas ruled that the Obama Administration (specifically, the Department of Homeland Security) violated the Administrative Procedure Act’s requirement of “notice and comment” rulemaking when it implemented DAPA. On appeal, a split Fifth Circuit panel ruled that even if DHS had complied with notice-and-comment procedures, DAPA was beyond the agency’s statutory authority. In addition, both lower courts found that the state of Texas had standing to prosecute the case, allowing a federal court to reach those conclusions on the merits. In granting certiorari, the Supreme Court asked the parties to also brief the question whether the President’s action was a violation of his constitutional duties under Art. II to “take care that the laws be faithfully executed.”

    Of course, the merits questions in the case raise difficult and important questions of delegated statutory authority to the executive branch, administrative law and procedure, and, most broadly, the president’s constitutional authority. I will not comment on these, as they have been the subject of extended commentary here, here, and here. Of the questions presented, the standing inquiry might be the least discussed, but one with the potential to seriously affect immigration policymaking well beyond the current presidential administration and programs like DAPA. This is especially true in our present-day quagmire of party polarization and congressional gridlock. Before discussing the case itself, though, it is worth contextualizing the political and legal dynamics that have culminated in this landmark case, highlighting the role both partisanship and federalism have played in landing Texas before the high Court.

    As I detail in a recently co-authored book, immigration policy since Sept. 11, 2001 has fallen victim to party polarization in a way that had previously not been true of immigration politics. That polarization largely explains the inability of Congress to pass immigration over the past 15 years, despite several attempts and broad support from the American public. In turn, Congress’ silence has cleaved space for two emerging policy dynamics. First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both restrictionist and integrationist policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas case implicates both trends, and their partisan roots, simultaneously.

    From 2004 through 2011, restrictionist state enactments reached record levels, with most of those policies enacted by Republican-controlled state governments seeking to enhance immigration enforcement and encourage unauthorized immigrants to “self-deport.” As I chronicle in a forthcoming law review article, the Obama Administration took the unusual step of suing several states – including Arizona and Alabama – to quash these state immigration regulations. The Court’s 2012 ruling in Arizona v. United States struck down several provisions of these laws, based in large part on a conflict between the state laws and the Administration’s enforcement priorities. Upholding the state immigration enforcement law in Arizona would have changed business-as-usual in immigration federalism, shifting significantly more power to the states to potentially dictate the volume and characteristics of immigration enforcement. Instead, some have argued that the case reified – perhaps expanded – executive control over immigration policy.

    As it turned out, the administration’s victory in Arizona was only the second most prominent executive-led immigration event of 2012. That summer, the president announced his Deferred Action for Childhood Arrivals program (DACA), providing deportation relief and the possibility of employment authorization to a large portion of undocumented youth. DACA, along with the Arizona case and the president’s reelection, triggered another wave of state and local enactments, but this time with a more integrationist bent. States expanded driver’s license, public assistance, and educational benefit availability for undocumented immigrants. Not surprisingly, in contrast to restrictionist schemes, integrationist policies were passed almost exclusively from jurisdictions – like California and New York City - controlled by Democrats.

  • October 5, 2015
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    On the first Monday in October, the Supreme Court returned from its long summer recess. Thus, the 2014 NLRB v. Noel Canning ruling -- which revoked President Barack Obama’s 2012 NLRB recess appointments – has well passed it first anniversary.

    The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a vague and unworkable “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed.  Some in the academy acclaim Steven Breyer’s majority opinion as reflecting a new “pragmatic formalism” while most others praise it for at-least being opposite Antonin Scalia’s dissenting-concurrence which restated the D.C. Circuit’s uber- textualist ruling.  I continue to think it was a mistake for the judiciary to have involved itself in the political branch appointments battles.

    No reporter, academic, or commentator, however, has yet revealed that Noel Canning also revoked President Lyndon Johnson’s  January 1964 judicial recess appointments of civil-rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovtiz. In a just-published article in the Houston Law Review’s online edition, I expose the unconsidered Noel Canning consequence of the judgeship revocations.  As the recess commission were signed by Lyndon Johnson during an eight day intersession recess of the 88th Senate,  Noel Canning judged the recess 48 hours too short and the judgeships illegal.  The recess appointments  were “rendered illegitimate” for failing the “presumptive 10-day” recess test.  The eight day break was 48 hours too short.

    Six weeks after John F. Kennedy’s murder, LBJ forced the racial and religious integration of three federal courthouses. The new president signaled his administration’s commitment to civil rights and directly challenged racist and reactionary forces in both the Senate and the federal judiciary. The LBJ White House tapes tell the story for Higginbotham, Robinson, (expect a slight delay) and  Rabinovitz,  and as Johnson made sure he secured the most political capital for signing each commission in the coming battle for the Civil Rights Act.

  • July 17, 2015
    Guest Post

    by Margaret Love, former U.S. Pardon Attorney (1990-1997); and author of the ACS Issue Brief, “Reinvigorating the Federal Pardon Process: What the President Can Learn From the States.”

    *This post first appeared on The Crime Report

    On Monday, President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses.  His counsel, Neil Eggleston, stated that, “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“

    Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from the President's speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.

    The President has now issued 89 commutations, the most since Lyndon Johnson. But even if the President ends up granting triple that number or more, it will hardly make a dent in the number of those in prison potentially eligible for relief under the announced standards of the Administration’s clemency initiative.  As Douglas Berman observed recently in his Sentencing Law and Policy blog, if the President one week were to commute as many as 80 federal drug prisoners, “this would still not be as substantively consequential for the federal prison population as the 400-plus drug defendants who will be sentenced to lengthy federal prison terms the very same week!”

    Meanwhile, the system for administering the clemency initiative is reportedly having difficulty gaining traction.  On July 4, The New York Times reported in a front page story that more than 30,000 federal prisoners have filed applications for commutation of sentence with Clemency Project 2014, the consortium of private organizations formed last year to assist the Justice Department in identifying worthy cases, but that a “cumbersome review process” has allowed only “a small fraction” of them to reach the President’s desk.

    A press release issued by Clemency Project 2014 shortly after the grants were announced conceded that only four of the 46 cases had been submitted under its auspices, and a review of the recipients of clemency reveals that several did not satisfy the Justice Department’s declared eligibility requirement of ten years already spent in prison.  Some prisoners have now expressed concern that perhaps the blessing of this Project was not the “fast track” to relief they had imagined.

    There is a growing sense of urgency among those who are responsible for organizing the clemency effort, in the Department of Justice and in the private bar.  In a recent training of volunteer counsel representing clemency applicants, Pardon Attorney Deborah Leff urged them not to delay in getting their clients’ petitions filed.

    "If there is one message I want you to take away today, it's this: Sooner is better," Leff said.

    Some federal public defender offices have been urged by Clemency Project 2014 to identify worthy applicants from among their client base and submit petitions for them prior to January 20, 2017, since it may take as much as a year for the Administration to review them.

    But even with the extraordinary resources that have been devoted to identifying prisoners who meet the Justice Department’s eligibility criteria, it seems unlikely that this task can be given more than a lick and a promise before the clock runs out on President Obama’s term.