Tue Aug 1, 2017
Thu Jul 14, 2016
By Debra L. Raskin and Anil Kalhan
Tue Jun 28, 2016
It may be tempting to regard the Supreme Court’s deadlocked decision last week in United States v. Texas, the Republican lawsuit challenging the Obama administration’s 2014 immigration initiatives, as something of a “non-decision” or “punt.” The Court’s one-line opinion—which, by convention, affirms the lower court’s judgment but has no further precedential effect—does not address any of the substantive issues presented in the case. Nor does the opinion itself disclose how any of the justices voted on any of the questions before them, although there seems little mystery as to which justices were likely on each side of the decision. And especially since the case came to the Supreme Court at the preliminary injunction stage, the litigation may be far from over—making it even more plausible to understand the Court’s decision as one that defers ultimate resolution of those issues.
Wed Apr 20, 2016
When the justices of the Supreme Court deliberate over the issues in United States v. Texas, the Republican lawsuit seeking to invalidate the Obama administration’s immigration initiatives, they would do well to reflect upon just how far the arguments that the plaintiffs have presented to them diverge from those that were presented to Judge Andrew Hanen in the Southern District of Texas when the lawsuit was originally filed.
Mon Apr 18, 2016
When the Supreme Court considers what it hears this week in United States v. Texas—the Republican lawsuit challenging the Obama administration’s immigration initiatives—the justices should start by getting the basic facts right, which is something that both the administration’s political opponents and lower court judges have scrupulously failed to do.
Mon Feb 15, 2016
DAPA, “Lawful Presence,” and the Illusion of a Problem (Yale Journal on Regulation Notice & Comment)
In an essay published earlier this week, Prof. Michael Kagan expresses concern that “one aspect” of the Obama administration’s executive actions on immigration might be vulnerable when the Supreme Court adjudicates United States v. Texas later this year. In particular, Kagan worries that the plaintiffs might “have a valid point” when they assert that the administration’s initiatives—Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals—improperly purport “to make lawful something that Congress has made unlawful.” Kagan’s concern rests principally—and possibly in its entirety—on a stray line in the memorandum issued by Homeland Security Secretary Jeh Johnson to establish DAPA and expand DACA, which states that “deferred action … means that, for a specified period of time, an individual is permitted to be lawfully present in the United States” (emphasis added).
Mon Jul 27, 2015
ARTICLE: Deferred Action, Supervised Enforcement Discretion, and the Rule of Law Basis for Executive Action on Immigration, 63 UCLA Law Review Discourse 58 (2015)
As the scale of the expansive and fragmented immigration enforcement regime has grown to such enormous levels — making the interrelated challenges of ensuring consistent execution of the law and fidelity to enforcement priorities more formidable — the need for effective mechanisms to supervise the discretion exercised by rank-and-file officials has only grown more important. But even as it purports to respect the government’s enforcement priorities, the logic of Judge Hanen’s ruling would largely disable policymaking officials from implementing such mechanisms, requiring them instead to let the vagaries of the bureaucracy reign supreme. The decision therefore not only inhibits the agency’s ability to establish enforcement priorities and manage its scarce resources, but also fails to acknowledge the importance of rule of law values such as consistency, transparency, accountability, and nonarbitrariness in the execution of the immigration laws.
Wed Jun 3, 2015
Judge Smith’s opinion is no less mistaken for having substituted “lawful presence” where Judge Hanen would have used “legal status.”
Mon Feb 23, 2015
Wed Jan 14, 2015
In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information for immigration control and other purposes. This information is aggregated and stored by government agencies for long retention periods in networks of interoperable databases and shared among a variety of public and private actors, both inside and outside the United States, with little transparency, oversight, or accountability.
Sat Jan 10, 2015
ARTICLE: Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances, 27 Georgetown Journal of Legal Ethics 1043 (2014)
Wed Oct 15, 2014
This week, three judges on the U.S. Court of Appeals for the Second Circuit, Judges José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., are once again hearing oral argument in the long-running legal battle over the New York Police Department’s stop-and-frisk practices. With New York City voters having delivered a decisive mandate for stop-and-frisk reform in last year’s mayoral election, it is time for the Second Circuit to permit the reform process to move forward without any further delay.
Thu Jan 2, 2014
SYMPOSIUM VOLUME: Building Global Professionalism: Emerging Trends in International and Transnational Legal Education, Drexel Law Review, Vol. 5 No. 2 (Spring 2013)
Tue Dec 31, 2013
ARTICLE: Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio State Law Journal 1105 (2013)
Tue Dec 24, 2013
(Published by Express Tribune (Pakistan), December 24, 2013)
Sun Dec 8, 2013
Q&A: “The SC Has Treated Judicial Independence as a Static Concept” (The News on Sunday, December 8, 2013)
(Interview for The News on Sunday, conducted by Farah Zia)
Sat Nov 30, 2013
(Published by Herald (Pakistan), November 2013)
Sat Nov 9, 2013
(Posted at Dorf on Law)
Tue Nov 5, 2013
(Posted at Dorf on Law)