Fri Sep 29, 2023

United States v. Texas, Regents, and the Roberts Legacy on DACA (Dorf on Law)

Earlier this month, Judge Andrew Hanen—the Bush-appointed judge in Texas who, back in 2015, Republican state elected officials handpicked to give legal effect to their political attacks on the Obama administration’s immigration policies—issued his latest ruling invalidating DACA, the Deferred Action for Childhood Arrivals initiative. Compared to earlier episodes in the long-running litigation over the Obama-era deferred action initiatives, the responses to Hanen’s latest ruling have seemed somewhat muted—not least, perhaps, because the outcome was entirely expected. News organizations and commentators have devoted relatively limited attention to Hanen’s ruling, and statements criticizing the decision have seemed to carry a certain amount of resigned fatigue. DACA’s most outspoken political opponents have also seemed mostly preoccupied by other matters. Even Hanen himself seemed to lack in this decision the kind of big xenophobic energy that he often exhibits in his immigration-related opinions.

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Tue Jun 28, 2016

United States v. Texas: The Supreme Court’s Silent Endorsement of Trumpisprudence (Dorf on Law)

United States v. Texas, summarizedIt 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.

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Wed Apr 20, 2016

The Strange Career of United States v. Texas (Dorf on Law)

The Strange Career of United States v. TexasWhen 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.

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Mon Apr 18, 2016

Ending Judicial Truthiness on Immigration (Washington Monthly)

Ending Judicial Truthiness on Immigration (Washington Monthly)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.

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Mon Feb 15, 2016

DAPA, “Lawful Presence,” and the Illusion of a Problem (Yale Journal on Regulation Notice & Comment)

USCIS - I-797 Notice of Action - DACAIn 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).

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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.

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