Editor's Note :

Editor's Note :

This week the blog will publish a multi-part online symposium on United States v. Texas, a challenge by Texas and twenty-five states to the Obama administration's deferred-action policy for immigration. Contributions to this special feature, as well as an “explainer” by this blog's Lyle Denniston, are available here.

UPDATED 6:41 p.m.    The Chief Justice has asked for a response to this application; it will be due next Tuesday, February 16, by 3 p.m. Eastern time.

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Forecasting “election chaos” if the Supreme Court does not act promptly, state officials in North Carolina on Tuesday sought a delay of a lower-court ruling that they said may force the rescheduling of the primary election in that state, now set for March 15.   The three-judge district court has ordered the state legislature to quickly draw new maps governing voting for members of Congress in Districts 1 and 12.

The state legislature, the lower court decided, had engaged in “racial gerrymandering” in fashioning new election boundaries, resulting in black voters making up more than fifty percent of the voting-age population in each of those districts.   State officials insist that this was done for political, not racial, reasons.

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Melissa Crow is Legal Director at the American Immigration Council.

The Supreme Court’s decision to grant certiorari in United States v. Texas signals an important and hopeful turning point in the case and provides a long-overdue opportunity to set the record straight on the scope of executive authority in the immigration arena. The case concerns a challenge by Texas and twenty-five other states to the lawfulness of President Barack Obama’s deferred action initiatives – Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) – which were announced in November 2014, but enjoined before they could be implemented.

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Richard Samp is Chief Counsel of the Washington Legal Foundation.

Ever since the Solicitor General filed a petition for certiorari in December on behalf of the government in United States v. Texas, some commentators have been billing the case as an epic clash between the executive and judicial branches. The Court’s decision to add consideration of a question not presented by the petition itself – whether the government’s November 2014 guidance document violates the Constitution’s Take Care Clause – upped the ante and suggested that a major constitutional decision addressing separation-of-powers issues might be in the offing. But not so fast.

The central issue in the case is a much more mundane administrative law issue: did the government violate the Administrative Procedure Act (APA) by adopting the guidance without adhering to the APA’s notice-and-comment procedures? Because the violation of those procedures is so blatant, Justices who prefer avoiding a direct confrontation with the president may well decide to invalidate the guidance on that basis, without addressing the broader constitutional and immigration-policy issues to which the parties are devoting so much attention.

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Wednesday round-up

By on Feb 10, 2016 at 8:46 am

As Lyle Denniston reported for this blog, yesterday a divided Court “ordered the Obama administration not to take any steps to carry out its ‘Clean Power Plan,’ a move that may stall the plan until after the president leaves office next January.”  At The Volokh Conspiracy, Jonathan Adler weighs in on the order; he observes that the Court’s “decision comes as a surprise, as it is unusual for the high court to block federal regulations,” but concludes in the end that a “an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.” Continue reading »

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Dividing five to four, the Supreme Court on Tuesday evening ordered the Obama administration not to take any steps to carry out its “Clean Power Plan,” a move that may stall the plan until after the president leaves office next January.  The order — issued in identical form in individual responses to five separate challenges — will spare the operators of coal-fired power plants from having to do anything to begin planning for a shift to energy sources that the government considers to be cleaner. (An example of the five orders is this one, issued in a case filed by twenty-nine states.)

The plan, designed to make sharp reductions in carbon pollution from the smokestacks of generating plants fueled by fossil sources, is now under review by the U.S. Court of Appeals for the District of Columbia Circuit.   It has put the case on an expedited schedule, with a hearing set for June 2.  However, it may not finish its ruling until this fall, and then either side may try to move the case on to the Supreme Court.

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Brianne Gorod is Chief Counsel at the Constitutional Accountability Center. She co-authored a cert.stage amicus brief on behalf of a bipartisan group of former members of Congress in support of the Obama administration in United States v. Texas.

When the Supreme Court announced it would review a lower-court decision blocking President Barack Obama’s executive action on immigration, supporters of the executive action celebrated the news. But they shouldn’t have been the only ones celebrating: so should anyone who cares about the rule of law. The decision of the court below is at odds with our nation’s immigration laws, which confer substantial discretion on the executive branch to determine how best to implement those laws. And, if allowed to stand, it would undermine the president’s ability to carry out his constitutional responsibility to “take Care that the Laws be faithfully executed.” It is time for the Supreme Court to reverse this erroneous lower-court decision and unfreeze the president’s program, which should have gone into effect nearly a year ago.

By way of background, on November 20, 2014, the secretary of the Department of Homeland Security issued a series of directives to establish priorities for DHS officials’ exercise of their discretion when enforcing federal immigration law. Consistent with statutory guidance provided by Congress, these directives clarified that the government’s enforcement priorities “have been, and will continue to be national security, border security, and public safety.” They further directed that in light of those priorities, and given limited enforcement resources, federal officials should exercise their discretion, on a case-by-case basis, to defer removal of certain parents of U.S. citizens or lawful permanent residents.

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Dan Stein is President of the Federation for American Immigration Reform.

The Supreme Court has decided to review certain elements in United States v. Texas. The Supreme Court should leave the injunction in place until a full trial on the merits. There is no urgency to decide this case so long as the administration is restrained from giving out benefits that would be difficult to revoke: work authorization and eligibility for various other benefits.

Should the Court lift the injunction and endorse the administration’s wildly broad claims of unlimited power to permit millions who are outside the rules stipulated by the Immigration and Nationality Act (INA) to remain here, then Congress and the American people will be left without remedy in the face of an unprincipled executive who willingly refuses to carry out his legal and constitutional responsibilities. In other words, the American people will never be able to rely on the courts to stop executive lawlessness in the provision of civil benefits in favor of an unlimited number of aliens who seek to enter or remain in the United States.

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Tuesday round-up

By on Feb 9, 2016 at 8:50 am

Briefly:

  • In The Washington Post, Robert Barnes reports on an amicus brief filed in the challenge to Texas’s abortion regulations that “urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.”
  • At his eponymous blog, John Q. Barrett responds to a blog post by Anton Piatigorsky on Justice David Souter, countering that what President George H.W. Bush “was seeking was, by all accounts, a problem-free, no paper trail, quality, Republican-type nominee—who, yes, as a replacement for Justice Brennan, almost by definition had the potential to shift the Supreme Court rightward.”
  • At The Blaze, Mark Miller weighs in on the property rights case S. Army Corps of Engineers v. Hawkes Co., in which the Court will hear oral arguments in March, arguing that the “right to own and responsibly benefit from property is a cornerstone of all our liberties. But that right lacks substance if owners can’t go to court to defend it, and bureaucrats are allowed to answer only to themselves.”

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Anne Egeler is Deputy Solicitor General for the State of Washington. She co-authored a cert.-stage amicus brief on behalf of Washington, fourteen other states, and the District of Columbia in support of the Obama administration in United States v. Texas.

For decades, Republican and Democratic presidents have used their executive authority to target immigration enforcement efforts and to defer deportation of certain undocumented immigrants. So there was nothing novel in President Barack Obama’s 2014 directive to the Department of Homeland Security to defer deportation of certain undocumented immigrants who pass background checks, have lived in the United States for five years, and either came here as children or have children who are U.S. citizens or permanent residents.

What is novel, however, is the theory under which Texas and other states challenged President Obama’s actions in federal court. Because Texas and the other plaintiff states have alleged no real harm, they should not be able to use the federal courts to further their political objectives and derail national immigration policy. The reality is that the president’s immigration directives will substantially benefit states, not harm them. That is why Washington and many other states filed an amicus brief urging the Supreme Court to hear this case and why we will file an amicus brief on the merits urging the Supreme Court to uphold the president’s actions.

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Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. The ACLJ is planning to file an amicus brief in United States v. Texas on behalf of members of Congress and thousands of Americans.

Impatient presidents don’t get to rewrite the law when they don’t get their way. This is foundational to our country’s entire system of governance. The Supreme Court recently granted the president’s petition for certiorari in United States v. Texas, a case taking this issue head on. Yes, this case is of great national importance, as the president contends, but for reasons different than those he advanced. It’s not about immigration policy. It’s about the Constitution and fundamental pillars of our republic – the separation of powers – intended to protect our liberties and freedoms (including those of people lawfully entering the United States).

On numerous occasions, President Barack Obama publicly proclaimed that he took executive action to “change the law” – specifically, to categorically confer “lawful presence” on at least 4.3 million illegal aliens. To the president, his constitutional responsibility to “take Care that the Laws be faithfully executed” brings with it the power to change the law. He’s wrong.

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