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Tag Archives: Immigration
We knew the policy was coming. We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented. Now, we have a fustercluck of a “temporary” Arab ban policy. There are potential legal issues involved which I will discuss below. As a major cautionary note, I don’t do immigration law. Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.
Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders. While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better. Instead, we have a policy statement masquerading as a policy.
Normally before an executive order is released, the White House staff has consulted with the effected agencies — here, State, Homeland Security, I.C.E., U.S.C.I.S., and T.S.A. — to get their input and make sure that everyone is on the same page at the time of implementation. Additionally, the Office of Legal Counsel typically has gone through the order to make sure that it is legally defensible — not necessarily a winning defense, but at least no glaring fatal flaws for which there is not even a colorable defense — and clearly sets forth the policy.
One of the basic concepts of economics is that the production of goods and services are a product of both capital (equipment) and labor (the work to turn raw material into finished goods or to provide the services). Some industries are what economists call “capital intensive” — meaning that relatively speaking it takes a lot of capital to purchase the equipment needed to operate (think the automobile industry). A capital intensive industry is difficult for new competitors to enter. Other industries are labor intensive — meaning that it takes little to capital to purchase the basic equipment and labor is the main input (think almost any profession). The only restrictions on entering these industries is any licensing requirement for workers. The degree to which an industry is capital intense (and how much skill the labor requires) in turn has an impact on the degree to which it is vulnerable to foreign trade and immigration poses a threat to existing workers.
While the Supreme Court does not have a hard and fast rule on when it recesses for the summer, traditionally the Supreme Court tries to issue opinions in all the outstanding cases before July 4. As a result, the last part of June typically sees the media remembering that we have a Supreme Court as major decisions pour out of the court in a flood during this time of year. It’s not that the Justices intentionally save the major cases until the end, but rather that these cases are the ones that are most likely to go back and forth with drafts and counter-drafts until the deadline for resolving the cases hits.
This year, there are thirteen cases left to be decided. The Supreme Court has actually been making decent progress over the past month — having gone to two opinion days per week two weeks ago and issuing eleven opinions over the past two weeks. While the Supreme Court will not announce additional opinion days for this week until after issuing opinions on Monday, it is likely that there will be at least one more opinion day (and maybe two more opinion days) later this week. Of the remaining thirteen cases, three or four of them have major political implications.
This past week was the first week of the April argument session — the third since the death of Justice Scalia and the last of this term. Next week will be the last three argument days of the term (with the last argument concerning the conviction of Former Governor Bob McDonnell of Virginia — with the primary issue being which type of “favors” by a government official will support a conviction under the statutes involved). After Wednesday, the remainder of the term will be issuing opinions and accepting cases for next term. This week was bookended by two cases of interest to the issues covered by this site. On Monday, the Supreme Court heard arguments on President Obama’s decision to defer deportation of certain unauthorized immigrants. On Wednesday, the Supreme Court issued its opinion on the Arizona redistricting plan.
The issues in the case challenging the President’s immigration policy falls into three categories: 1) do the States have “standing” (the right to bring the case); 2) was the policy guidance the type of the decision that had to go through the formal notice and comment procedures of the Administrative Procedure Act (the rules governing the issuance of formal regulations); and 3) are some elements of the policy so contrary to immigration law as to constitute a violation of those laws rather than the operation of executive discretion in the enforcement of the law). As shown by the transcript of the argument, the majority of the argument focused on the issue of standing.
Standing is a key concept in the law tied to the constitutional requirement that courts only decide “cases and controversies.” The basic principle is that a person can only file a law suit if they are in some way “injured” by the action that they are challenging. Thus, while you might not like the microbrewery in your town selling out to a big conglomerate, you do not have standing to challenge that merger unless you own stock in one of the two or can somehow demonstrate how that sale effects a legally-recognized interest that you have. Traditionally, states have a right to sue on things that adversely impact their governmental interests, but do not have the right to sue because the voters of their state disagree with a decision. When multiple parties join together in a case, the case can continue as long as one of them has standing. In recent years, the conservative majority on the Supreme Court have taken a narrow view of standing — one of the many doctrines that conservatives have used to keep cases out of court.
When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone. The first argument day of each term is always the first Monday in October. There are other key points in the term, but they float a bit. One of those floating dates is the Monday after the last January argument. That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules. Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case. Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October. That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June. With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.
Earlier this month, the United States Supreme Court heard arguments in Evanwel vs. Abbott. The issue in this case is how to measure population for the purposes of determining if districts have roughly equal population. The challengers are asserting that population should be based on voters rather than the total population. The State of Texas is claiming that each state gets to choose the appropriate measure of population. This case involves both theoretical discussion of the nature of representation as well as very serious political impact. The decision could vastly alter the politics of the U.S.
In politics, leaked information is rather common. It always seems that a potential proposal or policy change hits the news while it is still under consideration. The judiciary, and particularly the Supreme Court, has been mostly immune from this practice. The lack of solid information on what the Supreme Court has decided in any particular case before the official release of the decision leads those who follow the Supreme Court to try to read omens and clues from a variety of sources — the questions asked at oral argument, which justices have issued opinions from a particular two-week argument session, and sometimes what the justices have said in another opinion.
As we near the end of the active part of this year’s Supreme Court term, this past week saw a flood of opinions (nine opinions) leaving eleven cases to be issued presumably between Monday and July 1. (At the present time, the Supreme Court will almost certainly be handing down some opinions on Monday, June 22. It is unlikely that they will hand down eleven opinions on Monday. The Supreme Court has not yet announced any other days for the next seven days. Jf the Supreme Court is going to hand down all opinions this week, there will probably be one or two more days. If not, we will see at least some opinions on June 29, and maybe even on June 30 or July 1.) There were a couple of interesting Free Speech cases that I will probably post something on during the down time of July, but the big four cases of the second half of the term remain for this last push (fair housing, redistricting, health insurance subsidies, and same-sex marriage). The big surprise this week, however came in an unexpected case, Kerry v. Din. When this case came to the Supreme Court, it looked like a case about immigration law and the virtually unreviewable discretion of embassy staff to reject a visa request. However, this case arose in the context of the spouse of a U.S. citizen and court watchers are now wondering what the discussion of marital rights in this case might hint about the same-sex marriage cases.