Hanen’s most recent decision is his fourth significant pronouncement declaring Obama-era deferred action initiatives unlawful, and the decision rests on more or less the same flawed legal premises as each of his previous rulings. Back in 2015, as I discussed and analyzed at length both here at Dorf on Lawand subsequently in an article in the UCLA Law Review Discourse, Republican state elected officials successfully steered a lawsuit to Hanen—the only active judge hearing cases in his south Texas judicial division, and one with an extensive, well-documented record of anti-immigrant hostility—to challenge the legality of the Obama administration’s 2014 efforts to expand DACA and create a new initiative, DAPA, which would have made deferred action available to additional categories of undocumented immigrants. Hanen quickly enjoined the 2014 initiatives, and that ruling was validated twice by divided Fifth Circuit panels. In each instance, the Fifth Circuit opinions were written by Judge Jerry Smith: first, when the government sought a stay pending appeal, and subsequently, when the government appealed the merits of Hanen’s preliminary injunction decision. (I discussed and criticized the Fifth Circuit’s rulings here and here.) After the Supreme Court granted certiorari in 2016, it divided 4-4, thereby establishing no precedent but leaving the Fifth Circuit’s decision in place. As a result, the Obama administration never implemented DAPA, and the Trump administration formally terminated the initiative after assuming power in 2017. The original 2012 DACA initiative, however, was never subject to serious legal challenge and remained in place.

Hanen’s second encounter with the Obama-era deferred action initiatives came in the midst of the Trump administration’s efforts to terminate DACA. As lawsuits proceeded in other jurisdictions seeking to block DACA’s termination, Republican state elected officials returned to Hanen seeking essentially the opposite relief: a ruling declaring that DACA is unlawful and an injunction requiring the initiative to be immediately terminated. Hanen delivered on the first request, writing a lengthy opinion concluding that DACA violated the Administrative Procedure Act both procedurally, for not having been created through notice-and-comment rulemaking, and substantively, because it was purportedly not authorized by the immigration statutes. The opinion relied upon essentially the same reasons as those upon which the Fifth Circuit had relied when invalidating DAPA. However, Hanen declined to enjoin the initiative. Ultimately, of course, the Supreme Court vacated the Trump administration’s rescission of DACA in 2020 when—by a 5-4 margin, with Chief Justice John Roberts writing for the majority—it decided Department of Homeland Security v. Regents of the University of California.

Immediately upon assuming office in 2021, President Biden issued an executive order directing officials to take steps to “preserve and fortify” DACA. While those efforts were in progress, Republican officials rushed back to Hanen yet again, and in July 2021 he ruled yet again that in its original form, DACA violated the APA both procedurally and substantively. A Fifth Circuit panel consisting of Judges Priscilla Richman, James Ho, and Kurt Engelhardt affirmed Hanen’s ruling. However, while the appeal was pending, the Biden administration completed a notice-and-comment rulemaking process to implement DACA through regulations scheduled to take effect in October 2022. It was this more recent, rulemaking-based incarnation of DACA that Hanen deemed unlawful in his fourth, latest deferred action ruling earlier this month, relying again on many of the same legal arguments that have been leveled against the initiative for many years at this point. While the use of notice-and-comment rulemaking took the procedural APA arguments against DACA off the table, Hanen nevertheless concluded that the new incarnation of DACA “is flawed for the same substantive reasons as the 2012 DACA Memorandum.” As in 2021, however, Hanen nevertheless stayed his order as to existing DACA beneficiaries, thereby permitting the Biden administration to accept, process, and grant their renewal applications.

A certain amount of Andrew Hanen fatigue, therefore, seems entirely understandable. Reading Hanen’s lengthy, often strident opinions on the deferred action initiatives has long had a Groundhog’s Day quality, since in many respects the core substantive issues in the litigation have not changed very much over the years. As a result, there often has seemed very little to be surprised about or new to say about Hanen’s decision-making. However, coming after the Supreme Court’s decision in Regents, Hanen’s most recent two rulings do provide occasion to say something about the politicized immigration decision-making of John Roberts, for they draw attention to some of the ways in which Roberts’s opinion—celebrated by many DACA supporters at the time for preserving the initiative—may in fact now be contributing to DACA’s demise.

That should not be altogether surprising. As Professors Adam Cox and Cristina Rodríguez wrote soon after the case was decided, Roberts’s opinion was “as ominous as it [was] encouraging,” insofar as it appeared to provide a “roadmap” for DACA to be successfully terminated and to create barriers to “a future Biden administration’s ability to pursue a humanitarian path going forward.” (In a subsequent law review article, Professor Rodríguez suggested that the hurdles created by Regents might also “undermine the very act of policy change” for future incoming administrations. The Regents-based claims made in the flood of lawsuits filed by Republican state officials seeking to entrench and insulate Trump’s immigration agenda from his successor’s administration suggests that Rodríguez’s concern has been borne out to some extent, although those politicians almost certainly would have charged forward with their lawsuits even if Regents had never been decided.)

Three years later, conservative lower court judges like Hanen and Richman have indeed read Roberts’ opinion to bolster their anti-DACA positions—perhaps not in precisely the manner that Professors Cox and Rodríguez predicted in every last particular, but certainly to similar effect. Professors Cox and Rodríguez anticipated a scenario in which future administrations, litigants, or courts would draw upon Regents to argue that an initiative like DACA could permissibly carve out and confer deferred action itself—a longstanding means of exercising prosecutorial discretion, which provides tentative, discretionary forbearance from enforcement action—or something like it, but could not permissibly provide recipients of deferred action with other collateral “benefits,” such as the ability to apply for employment authorization, Social Security, or Medicare.

At least so far, anti-immigration litigants and judges such as Hanen have not taken up Roberts’ invitation to declare victory by accepting a hollowed-out version of DACA along these lines. Instead, they have invoked Roberts’ opinion more opportunistically and selectively to reinforce their existing, full-throated arguments calling DACA (and by extension, similar initiatives) more fundamentally into question altogether. That, too, should not be particularly surprising.

Continue reading….

The post United States v. Texas, Regents, and the Roberts Legacy on DACA (Dorf on Law) appeared first on Anil Kalhan.

Thursday, March 29, 2018
6:00pm-7:30pm
Reception to Follow

Drexel University Kline School of Law
3320 Market Street
Philadelphia, PA 19104

Panelists:

• Adam Thurschwell, General Counsel, the Military Commissions Defense Organization
• Julie Jetton, Member, New York City Bar Association’s Military Affairs & Justice Committee
• Meghan Rice ’18, Student Member, New York City Bar Association International Human Rights Committee; NGO Observer, Military Commission, U.S. Naval Station Guantánamo Bay, Cuba (January 2018)
• Pammela Quinn, Associate Professor of Law, Drexel University Kline School of Law (Chair/Moderator)

The post DREXEL EVENT: Justice Denied and Injustice Forgotten: The Guantánamo Bay Military Commissions (Thu Mar 29, 2018, 6:00pm) appeared first on Anil Kalhan.

Revisiting the 1996 Experiment in Comprehensive Immigration Severity in The Age Of Trump
by: Anil Kalhan | download this article (pdf)

The Trump administrationâ€s aggressive, wide-ranging effort to crack down on immigration—which, unlike some of its other initiatives, most certainly cannot be fairly characterized as seeking to “deconstruct” the administrative state—involves a somewhat complicated relationship with what came before. On the one hand, the new administrationâ€s sweeping, high-profile immigration enforcement initiatives—along with its inflammatory anti-immigrant rhetoric—mark the ascendance of immigration restrictionism to the highest levels of the executive branch to an extent that is entirely without modern precedent. On the other hand, the actual strategies that the Trump administration has utilized to carry out this crackdown, to date, have been facilitated by existing legal authority and administrative institutions inherited from its predecessors, both Republican and Democratic. Perhaps most notably, the Trump administrationâ€s immigration strategies have deep roots in the year 1996, when a Democratic president signed into law a series of statutes passed by a Republican-controlled Congress which instituted far-reaching changes to the immigration laws that the Trump administration has relied upon heavily when developing its own immigration control strategies.

Twenty years after the enactment of the 1996 laws, with immigration once again the subject of intense public controversy, the contributions to this symposium examine the origins and operation of the 1996 laws and their broader legacy and significance today. Convening only two weeks before the 2016 presidential election, the symposium participants could not specifically anticipate the aggressive immigration enforcement strategies that would be instituted during the first week of the new presidential administration in January 2017. At the same time, the participants were clear-eyed about the legacy of the 1996 immigration laws, recognizing that regardless of the outcome of the election, the legal and administrative regime established by those laws—and subsequently expanded and consolidated under both Republican and Democratic administrations—almost certainly would continue to cast a long shadow over immigration policy for years to come. As some of the contributors to this symposium observe, the prospects for meaningful immigration reform might ultimately be greater than they have initially appeared in the early months following the 2016 election. However, whatever various forms that such future immigration reform efforts might take, they inevitably will need to contend directly with the legacy of the 1996 experiment in comprehensive immigration severity.

Backlash, Big Stakes, and Bad Laws: How the Right Went for Broke and the Left Fought Back in the Fight Over the 1996 Immigration Laws
by: Frank Sharry | download this article (pdf)

This Article reflects upon the political contestation that led to the enactment of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, contextualizing the anti-immigration backlash and debates. Further, this Article discusses some of the ways in which immigration advocates sought to respond to that backlash, sometimes controversially. Finally, the Article considers lessons to be learned for contemporary discussions over immigration reform, highlighting the changing political landscape and available paths through which advocates might successfully achieve fair and meaningful immigration reform.

The 1996 Immigration Laws Come of Age
by: Jennifer M. Chacón | download this article (pdf)

Twenty-one years ago, in direct response to an attack perpetrated by Timothy McVeigh, a U.S. citizen and anti-government terrorist, Congress perversely enacted a set of punitive laws aimed not at white nationalists, but at immigrants. These 1996 laws generated three important shifts in immigration law and policy by radically expanding grounds for deportability while shrinking paths to deportation relief, creating a substantial role for sub-federal governmental entities in immigration investigation and enforcement, and rendering lawful permanent resident status more precarious. Simultaneously, Congress prompted the ad hoc creation of a host of liminal legal statuses bestowed by Executive Branch officials seeking to moderate the harsh effects of the laws. The 1996 laws significantly expanded the reach of the carceral state, particularly with respect to foreign nationals, while simultaneously kneecapping federal and state social support for immigrants. In short, the legal regime established in 1996 ushered in a new era of immigration severity and the resulting enforcement policies soon followed the path laid out in the misguided criminal enforcement policies of the wars on crime and drugs. Like the sweeping crime bills that had preceded them, the 1996 laws generated a highly racialized system of enforcement purportedly justified by crime control imperatives. Like those earlier laws, the 1996 laws have had little measurable impact on public safety, even as they have normalized vast systems of carceral control over immigrant communities. By systemically promoting a narrative that equated immigrants and crime, these laws laid the groundwork for the ultimate electoral triumph of Donald J. Trump in the presidential election of 2016.

Zone of Nondeference: Chevron and Deportation for a Crime
by: Rebecca Sharpless | download this article (pdf)

The U.S. Supreme Court lacks a jurisprudence for when courts should defer to immigration agency interpretations of civil removal statutes that involve criminal law terms or otherwise require analysis of criminal law. This Article represents a first step toward such a jurisprudence, arguing for an expansive principle of nondeference in cases involving ambiguity in the scope of crime-based removal statutes. The zone of nondeference includes not only statutes like the aggravated felony provision that have both civil and criminal application, but all removal grounds premised on a crime. The animating principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. as well as the rationales behind both the ban on deference to criminal prosecutors and the criminal and immigration rules of lenity all support the conclusion that courts should not defer to agency interpretations of crime-based removal grounds.

Barring Survivors of Domestic Violence from Food Security: The Unintended Consequences of 1996 Welfare and Immigration Reform
by: Claire R. Thomas and Ernie Collette | download this article (pdf)

During the 1990s, Congress amended the Immigration and Nationality Act (“INA”) to create forms of immigration relief for previously neglected vulnerable groups. One such group—survivors of domestic violence—was aided through the Violence Against Women Act (“VAWA”), which amended the INA to allow abused spouses, children, and parents of U.S. citizens or lawful permanent residents to self-petition for family-based immigration benefits without the abuserâ€s knowledge. Both abused female and male spouses are able to receive immigration benefits under VAWA, as well as spouses in same-sex marriages.

Despite protections in immigration law for survivors of domestic violence, two other acts—the Professional Responsibility and Work Opportunity Reconciliation Act (“PWORA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”)—which also passed in the 1990s fundamentally changed immigration policy and made it more difficult for members of these vulnerable groups to access public benefits.

This Article will focus on the “unintended consequences” that both of these Acts created by excluding vulnerable groups from access to the Supplemental Nutrition Assistance Program (“SNAP”). By comparing public benefits access for categories of immigrants, such as survivors of domestic violence, trafficking, and those who obtained asylum protection, this Article will advocate for reforms at the federal, state, and local level to increase access to food security for vulnerable groups.

The Future Relief of Immigration Law
by: Jill E. Family | download this article (pdf)

Immigration law is in need of relief. Among the many problems affecting immigration law is the lack of respite from removal. The removal grounds—the characteristics and acts that render someone removable from the United States—are extremely broad and rigid. The only available penalty is removal. There is little proportionality in immigration law and qualifying for respite once one is determined to be removable is very difficult. This Article explores the lack of relief from removal in immigration law and shows how its stingy availability sheds light on other, broader problems afflicting immigration law. The current state of relief from removal helps to understand the conflicting signals of immigration law, the dysfunction of the immigration adjudication system, and the role of sovereignty in immigration law. This Article is a part of a symposium on the twentieth anniversary of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

 

The post SYMPOSIUM VOLUME: Twenty Years After the 1996 Immigration Laws, Drexel Law Review, Vol. 9 No. 2 (Spring 2017) appeared first on Anil Kalhan.

Believing that the opportunity to achieve reforms outweighs reservations regarding the “flawed” delegate selection process and possible risks to “cherished constitutional protections,” the New York City Bar Associationâ€s Task Force on the New York State Constitutional Convention has issued a report in support of convening a statewide constitutional convention.

Every twenty years, New York voters go to the polls to decide whether to call a constitutional convention to revise the New York State Constitution and amend the same. New York voters most recently answered no in 1997. In November 2017, as provided by the Stateâ€s Constitution, New York voters will once again face the question of whether to call a constitutional convention. If the electorate decides to call a convention, delegates will be elected in November 2018 and the convention will convene in April 2019.

“We know that there is no guarantee that a convention whose delegate selection processes are flawed will address and correct the endemic problems of our State government,” the report states. “We also recognize that any risk to cherished constitutional protections is deeply concerning to members of the bar who work tirelessly on behalf of low-income individuals, and those concerns should be given significant weight. But, upon hearing, considering and deliberating the overall pros and cons of holding a convention, and taking into account longstanding City Bar positions, we have ultimately concluded that the potential benefits – primarily in the areas of government ethics, suffrage and judiciary reform – outweigh the potential risks.”

In a rare but not unprecedented move, the City Bar appended an objection from several of its committees, which argues that the risks outweigh the prospects for achieving desired reforms and urges alternative routes for reform.

In 1997, the City Barâ€s Task Force, despite finding that the Constitution was in need of significant reform, recommended against a convention due to its concerns with the delegate selection process, the risks of constitutional protections regarding social welfare being weakened, and the power of PAC and special-interest money.

Objection to the City Bar’s Position by the Capital Punishment, Civil Rights, Family Court and Family Law, Immigration and Nationality Law, International Human Rights, Lesbian, Gay, Bisexual and Transgender Rights, Pro Bono and Legal Services, Social Welfare Law, and State Courts of Superior Jurisdiction Committees and the Council on Judicial Administration:

Nine committees of the New York City Bar Association—Capital Punishment, Civil Rights, Family Court and Family Law, Immigration and Nationality Law, International Human Rights, Lesbian, Gay, Bisexual and Transgender Rights, Pro Bono and Legal Services, Social Welfare Law, and State Courts of Superior Jurisdiction—as well as the Council on Judicial Administration, urged the City Bar either to oppose a Constitutional Convention or to make no recommendation on the issue. Those Committees that urged active opposition believe that a Constitutional Convention poses a greater risk to the unique protections that our State Constitution provides to all New Yorkers than it offers in the promise of beneficial reform. In their view, a Constitutional Convention poses the greatest potential harm to New Yorkers who have historically lacked political power, including low-wage workers and other low-income people, immigrants, people of color, LGBT people, and others whose interests are currently under attack on the federal level.

The City Bar determined that the views of these committees and Council (the “Objecting Committees”) are a significant and valuable contribution to the debate regarding whether New York should hold a Constitutional Convention, and therefore invited the Objecting Committees to prepare this statement so that the public would have the advantage of seeing a wider range of views on whether to support or oppose the calling of a convention.

Download (PDF, Unknown)

The post REPORT AND OBJECTING STATEMENT: New York City Bar Ass’n Task Force on the New York State Constitutional Convention, June 14, 2017 appeared first on Anil Kalhan.

Monday, September 26, 2016
6:00 PM – 8:15 PM
New York City Bar Association
42 West 44 Street, New York, NY 10036

Program Fee: Free

Description:
Experts on human rights in Turkey, including those who have recently visited, will describe the human rights situation in the country. They will discuss recent history, the coup attempt in July, and developments since the coup as they relate to human rights for migrants and refugees, journalists, political parties, minorities, scholars and academics, and other targeted groups. They will also discuss the government’s use of the justice system as a tool of repression. The speakers will offer thoughts on possible future developments in Turkey, and note opportunities for involvement and advocacy by lawyers, lawyers’ organizations, and other representatives from the United States, in support of greater human rights in Turkey.

Panelists:
Nina Ognianova, Europe and Central Asia Program Coordinator, Committee to Protect Journalists (@kremlinologist1)
Aslı Iğsız, Ph.D., Assistant Professor, Department of Middle Eastern and Islamic Studies, New York University
Steven Cook, Eni Enrico Mattei Senior Fellow for Middle East and Africa Studies, Council on Foreign Relations (@stevenacook)

Sponsored By:
International Human Rights Law Committee, Anil Kalhan, Chair

Related:
Letter from John S. Kiernan, President, New York City Bar Association, to H. E. Mr. Recep Tayyip ErdoÄŸan, President of the Republic of Turkey (Sep. 16, 2016)

The post PANEL: Human Rights in Turkey After the Attempted Coup (New York City Bar Ass’n, Mon Sep 26, 2016, 6:00pm) appeared first on Anil Kalhan.

** To watch a live video stream of the symposium, click here **

Download (PDF, Unknown)

Twenty Years After the 1996 Immigration Laws: Revisiting an Experiment in Comprehensive Severity

Friday, October 14, 2016

#DrexelLR16

The 2016 Drexel Law Review Symposium will feature leading experts on immigration law and policy who will critically reassess three laws enacted by Congress in 1996: the Antiterrorism and Effective Death Penalty Act, the Illegal Immigration Reform and Immigrant Responsibility Act and the Personal Responsibility and Work Opportunity Reconciliation Act.

These statutes ushered in sweeping changes to immigration law. The legislation dramatically expanded the ground for deporting noncitizens and mandated greater use of detention, while curtailing procedural safeguards, eliminating avenues for discretionary relief from removal, and creating barriers for refugees seeking safety on a humanitarian basis. Many noncitizens also were rendered ineligible for public benefits. As a result, immigration control has grown into an enormous enterprise, with the United States now expelling unprecedented numbers of noncitizens each year.

With immigration again the subject of election-year controversy and with social movements and immigrant communities forcefully advocating reform, the 2016 Drexel Law Review Symposium will critically reassess this experiment in “comprehensive immigration severity.” Leading experts will examine the origins and operation of those laws and their broader legacy and significance. Speakers will also discuss visions and strategies for reform and the challenges that advocates face in pursuing those reforms.

#DrexelLR16

Registration information available here.

Schedule

Registration information available here:

The post DREXEL SYMPOSIUM: Twenty Years After the 1996 Immigration Laws: Revisiting an Experiment in Comprehensive Severity (Fri Oct 14 2016) appeared first on Anil Kalhan.

Drexel University is seeking applications and nominations for the position of Dean of the Kline School of Law. This position offers an extraordinary opportunity for a visionary leader with a strong track record of teaching, scholarship, and achievement to lead, promote, and drive innovation within the School, while expanding its reach. Reporting to and working with the Provost, the Dean will have responsibility for strategic, programmatic, financial, fundraising, and management operations that support the School’s mission.

About the Kline School of Law: Founded in 2006, the School was named in honor of Thomas R. Kline in 2014 after a landmark $50M gift. The School focuses on educating students who will serve their communities and recognize their obligation to provide legal representation and access to justice for all members of society. The School also fosters an environment where faculty and students critically examine and seek to improve the law, legal systems, the legal profession, and legal education. Embedded in a comprehensive national research university, the School has a demanding curriculum, a variety of experiential learning opportunities in a vast range of practical settings, and an exceptional and accomplished faculty that prides itself on both its teaching and its scholarship. Located in Philadelphia, amid the sixth largest legal community in the country, the School’s students engage with practicing lawyers through cooperative education and pro bono programs. Further, curricular concentrations in Business and Entrepreneurship Law, Criminal Law, Health Law, and Intellectual Property Law mirror the strengths of the University, the bar, and our region’s economy. The School has over 400 students across its JD, accelerated two-year JD, LLM, and Master of Legal Studies programs and over 30 full-time faculty engaged in teaching and scholarship, with an additional 48 part-time faculty.

About Drexel University: Founded in 1891, Drexel is a privately endowed, comprehensive research university with uniquely distinguished educational programs known for providing students with leadership, experiential, and global learning opportunities. Drexel is ranked among the top 100 universities in the Nation and, with approximately 26,000 students, is one of America’s 15 largest private universities. Drexel educates and engages students and communities at 3 separate Philadelphia campuses, regional sites, and international research locations in China, Korea, Brazil, and Israel. Drexel University has one of the Nation’s largest and most well established co-operative educational programs, integrating real world experience with student learning. Drexel Online is also one of the oldest and most successful providers of online degree programs. Drexel is committed to being the Nation’s most civically engaged University, with community partnerships integrated into every aspect of service and academics. The University is one of Philadelphia’s top 10 private employers and is a major steward in driving economic development in the region.

Send applications (curriculum vitae and detailed cover letter), nominations, and inquiries to the email address below. For priority consideration, please apply by September 30, 2016. For additional information about Drexel and the Kline School of Law, visit www.drexel.edu and www.drexel.edu/kline.

Kline-Law@kornferry.com

Ken Kring, Co-Managing Director, and Josh Ward, Ph.D., Senior Associate
Global Education Practice, Korn Ferry, Philadelphia, PA

Drexel University is an equal opportunity and affirmative action employer and does not discriminate against persons on the basis of race, religion, national origin, sexual orientation, gender, gender identity and expression, marital status, age, disability, pregnancy, medical condition, or covered veteran status.

Contact Us: Kline-Law@kornferry.com

The post Position Announcement: Dean of Drexel University Thomas R. Kline School of Law appeared first on Anil Kalhan.

Pressure is mounting on the United States to push the United Nations to respond more effectively to the cholera epidemic that broke out in Haiti in the aftermath of the 2010 earthquake. The epidemic has reportedly killed at least 9,200 and, by some estimates, perhaps as many as three times that number. Hundreds of thousands more have been infected. And the devastation isnâ€t over; Haiti continues to struggle to contain a disease that it had not previously faced for over a century.

Evidence points to United Nations peacekeepers as the most likely source of the disease in Haiti. An expert panel commissioned by the United Nations itself pointed the finger at the “haphazard” disposal of human waste at a UN base close to the epicenter of the outbreak, near a tributary to Haitiâ€s largest river—the primary water source for tens of thousands of people. Most recently, news outlets reported that an internal UN memo stated that improper disposal of human waste was a widespread problem at other UN bases across Haiti as well.

Despite this evidence, however, the United Nations has refused to accept responsibility for the outbreak and has resisted efforts to hold itself accountable. To date, the United States has supported the organization in its resistance. However, several groups, including the New York City Bar Association, have called on Washington to take concrete steps to ensure that the United Nations provides a mechanism that victims can use to fairly settle their claims against the
organization. In a letter sent to U.S. Secretary of State John Kerry last week, a bipartisan group of 158 members of Congress urged the State Department to “immediately and unreservedly exercise its leadership” to ensure “a more just UN response.”

Continue reading at Foreign Affairs….

The post No Immunity from Cholera: How to Hold the United Nations to Account (Foreign Affairs) appeared first on Anil Kalhan.

At the same time, to characterize the Courtâ€s decision as merely an “inability to decide” misses something consequential and troubling about that disposition. It is not merely the case, as Jack Chin and other legal observers have understandably lamented, that the Court “missed an opportunity here to give some guidance” on the controversial legal questions before it—which of course it did. Nor is it only the case, as Walter Dellinger has powerfully observed, that with the lives of millions of U.S. citizens and non-U.S. citizens at stake in this litigation, “[s]eldom have so many hopes been crushed by so few words”—about which he, too, is unmistakably correct.

In addition, by affirming the legally flawed and deeply politicized lower court decisions blocking the Obama administrationâ€s immigration initiatives—the substance of which I have previously discussed in several essays for Dorf on Law (here, here, and here), an essay for Yale Journal on Regulation Notice and Comment, an essay for Washington Monthly, and an article in the UCLA Law Review Discourse—the Supreme Courtâ€s decision necessarily embraces modes of legal analysis and adjudication that the Court should have openly and decisively repudiated. And by doing so instead under the cover of an opaque, unsigned opinion that reports only the bare fact of the Courtâ€s stalemate, the four justices who voted to affirm those decisions—presumably Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—obscure their own roles from public scrutiny at the expense of transparency and accountability. (Which, as it happens, are among the very rule of law values that the Obama administrationâ€s immigration initiatives themselves, by contrast, actually help to promote.) Both the continuities with and the contrasts to what has been transpiring in the political process this year are striking.

Continue reading….

[A version of this essay is also published at Newsweek]

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