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February 29, 2016

A Summary of Justice Scalia’s Major Immigration Opinions by Sadie Weller

Here is a guest post for Immigration Prof Blog by law student Sadie Weller '17.

In light of Supreme Court Justice Antonin Scalia's untimely passing earlier this month, ImmigrationProf provides this overview of his immigration jurisprudence. His immigration opinions demonstrate that, although Justice Scalia was never one to hide his political views, his firmly held legal principles about statutory interpretation and deference to agency action, deeply influenced his immigration opinions.

Notable Majority Opinions

Justice Scalia wrote his first immigration decision for the Supreme Court in 1987 in Kungys v. U.S. The case involved a naturalized citizen who the Department of Justice accused of executing thousands of Jewish Lithuanians in 1941, before he came to the United States. In an action brought to revoke Kungys's citizenship, Justice Scalia for the Court determined the materiality standard to apply to the "concealment or misrepresentation" clause and the false testimony provision of the "illegally procured" clause of 8 U.S.C. § 1451, which authorizes the revocation of naturalization. Justice Scalia held, in an opinion focusing on the proper interpretation of the statute, that the appropriate standard was whether the concealments or misrepresentations (in this instance, Kungys' place and date of birth) had a "natural tendency to influence the [government's] decision." Justice Scalia concluded that Kungys' misrepresentations in his naturalization petition were not "material."   The case was remanded to the court of appeals, with Justice Scalia emphasizing the "unusually high burden of proof in denaturalization cases."

In INS v. Elias-Zacarias (1992), Justice Scalia for the Court examined whether a Guatemalan asylum-seeker could obtain asylum based on the claim that a guerrilla organization attempted to coerce him into performing military service. Relying on the "ordinary meaning" of the statute, he found that Elias-Zacarias had failed to express a political opinion hostile to the persecutor in refusing to join the guerilla movement and thus could not establish "persecution on account of political opinion." Consequently, Justice Scalia determined that Elias-Zacarias failed to establish a well-founded fear of persecution with sufficient "clarity necessary to permit reversal" of the Board of Immigration Appeals' finding to the contrary. The practical effect of basing asylum on the asylum-seeker's, and not the persecutor's, political opinion has been the imposition of a heavy burden on asylum-seekers; they are required not only an affirmative expression of political opinion, but one hostile to their persecutors. In many countries, including Guatemala, persons often try to keep their political views to themselves to survive. Under Elias-Zacarias, these people are generally ineligible for asylum.

Writing for the majority in Reno v. Flores (1993), Justice Scalia, with characteristic deference to administrative agencies, upheld an Immigration and Naturalization Service (INS) policy that provided that detained unaccompanied minors could only be released to parents, legal guardians, or close relatives, but not "other responsible adults." Respondents challenged the regulation, 8 C.F.R. 242.24, establishing this policy, asserting that it violated due process, equal protection, and went beyond the scope of the Attorney General's discretion to make detention and release decisions. Justice Scalia reversed the lower court ruling invalidating the regulation, holding that the INS policy was a "reasonable response to the difficult problems presented" by the apprehension of unaccompanied minors. He acknowledged that other policies may be better, but declined to act as a "legislature charged with formulating public policy."

In an opinion for a unanimous Court, Justice Scalia in INS v. Yueh-Shaio Yang (1996) held that the U.S. government may take into account acts of fraud committed by a noncitizen in connection with entry into the United States. He noted that "[a]lthough it is the INS's settled policy to disregard entry fraud, no matter how egregious, in making the waiver determination," this policy is the "INS's own invention and is not required by the statutory text." In adhering to the statutory text, Justice Scalia deferred to the judgment of the Attorney General to distinguish between noncitizens who engaged in a pattern of fraud and those who committed a "single, isolated act of misrepresentation."

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In 1999, Justice Scalia applied a provision of IIRIRA for the Court in Reno v. American-Arab Anti Discrimination Committee. The "L.A. 8" brought suit, claiming that they were targeted for removal because of their affiliation with a politically unpopular group (the Popular Front for the Liberation of Palestine).  Applying a provision of IIRIRA, Justice Scalia held that the Court lacked jurisdiction to second-guess the Attorney General's unreviewable discretion to bring removal orders against a noncitizen. Although the Court dealt with the petitioners' First Amendment claim only as a secondary matter, the decision has been viewed by some as a blow to First Amendment rights of noncitizens. Essentially, the opinion implied that the free speech rights of noncitizens were irrelevant if the government had an independent reason to deport them.

In a somewhat surprising turn of events, Justice Scalia extended the holding of an immigration case in which, four years earlier, he had dissented (Zadyvas v. Davis, below). Zadyvas held that the U.S. immigration authorities could detain admitted aliens only so long as "reasonably necessary" to effectuate removal. Justice Scalia, in Clark v. Martinez (2005), extended this holding to inadmissible aliens as well. As a result of this decision, several hundred long-term detainees were ordered released from the custody. Justice Scalia also found that Zadyvas's presumptive detention period of six months governed a case involving two inadmissible Cuban nationals. 

On the same day as Clark v. Martinez, Justice Scalia wrote for the Court in Jama v. Immigration and Customs Enforcement (2005). In looking at whether a country's inability to consent in advance to a noncitizen's removal, Justice Scalia held that though nonacceptance could be "one of the factors considered in determining whether removal to a given country is impracticable or inadvisable," the Immigration and Nationality Act did not make this dispositive. In response to petitioner's claim that an acceptance requirement is "manifest in the entire structure" of the INA, Justice Scalia declined to make such an inference, given that he read the express language of the statute as indicating otherwise.

Although not writing for a majority of the Court, Justice Scalia wrote for a plurality in Kerry v. Din (2015).  The plurality reasoned that, "even accepting the textually unsupportable doctrine of implied fundamental rights," a U.S. citizen wife was not deprived of a fundamental liberty interest when her noncitizen spouse was denied entrance into the United States because of his alleged terrorist activity. To find such a right would, as Justice Scalia's wrote, require "diluting the meaning of a fundamental liberty interest." He characterized Congress's concern for the unity of immigrant families as a "matter of legislative grace rather than a fundamental right." Rejecting the idea that Din had an identifiable right protected by due process, Justice Scalia concluded that the explanation given to Din by the State Department regarding her husband's denial of entry was "more than the Due Process Clause required." 

Notable Concurring and Dissenting Opinions

In INS v. Cardoza-Fonseca (1987), a major decision on the different evidentiary burdens for asylum and withholding of deportation, Justice Scalia concurred in the judgment.  He emphasized that he agreed "with the Court that the plain meaning of 'well-founded fear' and the structure of the Immigration and Nationality Act (Act) clearly demonstrate that the 'well-founded fear' standard [for asylum] and the 'clear probability' standard [for withholding of removal] are not equivalent."  Justice Scalia relied on the plain language of the statute for that conclusion and rejected the majority's analysis of legislative history, which he criticized frequently and vociferously.  Because the plain language of the statute answered the question, Justice Scalia statute thought that the Court need not discuss deference to the U.S. government's interpretation of the statute under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984). 

In what was criticized by Supreme Court observers as nothing less than a political attack on the Obama administration's immigration policies, Justice Scalia's dissent in Arizona v. United States (2012) would have upheld Arizona's controversial immigration enforcement law known as SB 1070 in its entirety He characterized the majority's decision as a denial of the power of the states "to exclude from the sovereign's territory people who have no right to be there." He contended that Arizona as a sovereign state had the right to confront the "illegal immigration problem," because its citizens felt "under siege" by large numbers of immigrants who "invade their property," "strain their social services," and "place their lives in jeopardy." Justice Scalia argued that federal failure to "remedy the problem" justified the Arizona law. 

In Zadvydas v. Davis (2001), the majority, in an opinion written by Justice Breyer, held in part that the Immigration and Nationality Act did not allow the Attorney General to indefinitely detain immigrants pending removal, with the presumptive detention period is six months. Justice Scalia declared that a noncitizen under final removal order has no legal right to release into the United States. Because such a person has "totally extinguished whatever right to presence in this country he possessed," the Attorney General, in Justice Scalia's view, retained unbridled discretion over his custody.

Conclusion

Some might reflexively label Justice Scalia as "conservative" or "anti-immigrant" in his immigration jurisprudence. However, a closer look reveals that Scalia's political views did not exclusively guide his opinions. Also apparent was his focus on deference to administrative agencies (at least so long as they were interpreting the statutes consistently) and a general contempt for judicial activism. Another aspect of his general approach was his insistence on the interpretation of immigration statutes according to their ordinary meaning. For example, Justice Scalia, in adhering to the language of the immigration statute, voted in favor of noncitizens in several crimmigration cases, including Moncrieffe v. Holder (2013). (holding that a low-level marijuana offense could not be considered an "aggravated felony" for deportation purposes under the immigration statute) and Mellouli v. Lynch (2015) (reversing a removal order based on a drug paraphernalia conviction)." ("Justice Scalia's crimmigration legacy" is reviewed here.). Although it may be true that more of Justice Scalia's opinions hurt immigrants than helped them, his pro-immigrant rulings and devotion to certain doctrinal and other approaches should not be ignored from discussions of his immigration legacy. 

 

February 23, 2016

Taking Part in the Crimmigration Law Lecture Series

On March 3, I will deliver a talk in the inaugural Crimmigration Law Lecture Series at the University of Denver.

From the event website: "The lecture series is dedicated to understanding how criminal and immigration norms affect one another and to creating a praxis that can potentially shape crimmigration’s development. As far as we know, this year-long crimmigration-focused project is unique."

 

For more information, visit http://crimmigration.com/2016/02/23/crimmigration-law-lecture-series-at-university-of-denver/.

February 23, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 1

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"The One Woman Director Mandate: History and Trajectory" 
CORPORATE GOVERNANCE IN INDIA: CHANGE AND CONTINUITY (ed. Indian Institute of Corporate Affairs) (Oxford University Press, Forthcoming)
UC Davis Legal Studies Research Paper No. 472

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2013, India passed historic legislation mandating that boards of publicly listed and certain other large companies must include one woman director. The mandate, which came into effect on April 1, 2015, has the potential to vastly change the profile of Indian boards and board members. This chapter examines the history and trajectory of India's board diversity requirement. It seeks to understand the genesis and goals of this requirement, and explores some of the challenges that India has already faced and may continue to face with respect to the possible effectiveness of this requirement. The chapter then considers for the Indian context the implications of business and social science literature on gender diversity on corporate boards.

"In Defense of Content Regulation" 
UC Davis Legal Studies Research Paper No. 483

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

Since at least 1972, the central tenet of free speech doctrine has been that if a law regulates speech based on its content, and the speech is not unprotected or "low value," then the law is subject to strict scrutiny and presumptively unconstitutional. Few commentators have seriously questioned this rule, on the assumption that any deviation from it threatens to unleash censorship, and is in any event unnecessary. This article questions that consensus, and identifies specific circumstances in which, it argues, the government should be permitted to discriminate based on content.

The article begins by identifying a variety of situations in which courts have regularly evaded the general presumption against content regulation, even though the speech at issue was in principle fully protected. The core insight of this article is that these evasions make sense. The corollary of the rule against content discrimination is a presumption that all (fully protected) speech should be treated as equally valuable. But this presumption itself conflicts with the Supreme Court's repeated assertions that the First Amendment values certain speech - speech relevant to democratic self-governance - above all other forms of speech. So, all speech is not equal. Moreover, there are specific circumstances in which it is profoundly irrational to treat all speech as equally valuable. The core example is physical scarcity of speech opportunities. Here, some speech must be allowed, at the expense of other speech. Why not, then, favor more over less valuable speech? Yet current doctrine forbids this choice. The article goes on to identify other specific, objectively definable situations where the presumption against content regulation should be reconsidered. It concludes by exploring, and rejecting counterarguments.

"Information Goes Global: Protecting Privacy, Security, and the New Economy in a World of Cross-Border Data Flows" 
E15Initiative. Geneva: International Centre for Trade and Sustainable Development (ICTSD) and World Economic Forum, 2015.
UC Davis Legal Studies Research Paper No. 480

USMAN AHMED, eBay Inc.
Email: uahmed2@gmail.com
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

This paper addresses the question of whether it is possible to balance the need for a free flow of information across borders with legitimate government concerns related to public order, consumer privacy, and security. The paper begins by highlighting the risks associated with limitations on free information flows and the policy concerns that lead to these limitations. The paper then provides an analysis of the current international regime on cross-border information flows. The authors argue that specific binding trade language promoting cross-border flows - combined with continued international cooperation - will enhance, rather than undermine, public order, national security, and privacy.

"Should Rape Shield Laws Bar Proof that the Alleged Victim Has Made Similar, Untruthful Rape Accusations in the Past?: Fair Symmetry with the Rape Sword Laws" 
Pacific Law Journal, Forthcoming
UC Davis Legal Studies Research Paper No. 478

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Traditionally, the common law enforced a general ban on character evidence. More specifically, the common law prohibited a proponent from introducing evidence of a person's other conduct as proof of the person's character trait and then using the trait as proof that on a particular relevant occasion, the person acted consistently with the trait. The prohibition applied to both sides in criminal as well as civil cases. Federal Rules 404-05 extend the prohibition to evidence on the historical merits, and to an extent Rules 608-09 apply the ban to evidence offered on a credibility theory. Rule 608(b) deviates from the ban by permitting cross-examination about a witness's other untruthful acts but bars extrinsic evidence of the acts.

In 1995 Congress enacted the "rape sword" statutes, Rules 413-14. The statutes carve out an exception to the traditional prohibition and allow the prosecution to introduce evidence of an accused's other sexual assaults or child molestations on a character theory to prove the accused's commission of the charged offense. The available psychological research does not warrant drawing a character inference when there is only one or a few other instances of similar conduct. However, the proponents of the statutes contend that the statutes are defensible because these prosecutions often devolve into swearing contests and the prosecution has a legitimate need for evidence to break the credibility tie by corroborating the victim's testimony that the offense occurred.

Especially since 1995, in these prosecutions the defense has attempted to introduce evidence, including extrinsic testimony, of similar, untruthful accusations by the complainant. However, the prosecution has objected that such evidence runs afoul of the prohibitions in Rules 404-05, 608, and 412, the rape shield statute. A few jurisdictions have construed these statutes as banning the defense evidence. However, many jurisdictions allow defense cross-examination about similar, untruthful accusations. Even in these jurisdictions, though, the courts ordinarily exclude extrinsic proof.

The first thesis of this article is that the courts should permit cross-examination when the defense has sufficient proof that the prior accusation was untruthful. Like prosecution evidence proffered under Rules 413-14, this evidence is logically relevant on a character reasoning theory.

Moreover, if the proponents of the rape sword statutes are correct, like the government the defense has an acute need for evidence to prevail in the swearing contest. Just as evidence of other offenses by the accused corroborates the complainant's testimony that the accused attacked him or her, evidence of the complainant's prior, untruthful accusations corroborates the accused's testimony that the complainant has fabricated the charge against the accused.

The second thesis of this article is that as a matter of policy, extrinsic evidence of the prior similar accusations should be admissible. Admittedly, Rule 608(b) purports to enunciate an absolute ban on extrinsic evidence of prior untruthful acts. However, Rule 608(b) is the only impeachment technique subject to a rigid, absolute prohibition of extrinsic evidence; and the wisdom of singling out 608(b) impeachment is questionable. Furthermore, the accused has an extraordinary need for extrinsic evidence in 413-14 cases. Women and children who are the alleged victims of these offenses are exceptionally sympathetic figures on the witness stand; and if the defense cannot disprove the alleged victim's denial on cross-examination, the cross-examination is likely to be counterproductive - the jurors may conclude that the cross-examination was a second, cruel victimization of the complainant. At least in this context, if the law is going to permit inquiry about prior, untruthful accusations, the defense ought to have the right to resort to extrinsic evidence.

The rape sword statutes impact the balance of the criminal justice system in Rule 413-14 prosecutions. To maintain the essential balance of the adversary system in these cases, Evidence law should permit the defense to introduce extrinsic evidence of the complainant's prior, similar, untruthful accusations.

"Back to the Future? Returning Discretion to Crime-Based Removal Decisions" 
New York University Law Review Online, Vol. 90, 2016, Forthcoming
UC Davis Legal Studies Research Paper No. 479

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest article, Return of the JRAD, 90 NYU L. REV. ONLINE 36 (2015), calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a "Judicial Recommendation Against Deportation" (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States.

Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by respected federal district court judge Jack Weinstein. In United States v. Aguilar, the judge issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children.

One might dismiss Judge Weinstein's recommendation as mere dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the immigration laws. He seeks to return discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

Part I expresses full agreement with Jason Cade's conclusion in Return of the JRAD that the modern criminal removal system fails to protect against unfair removals of immigrants.

Part II adds a powerful justification to the call for the reform of the modern criminal removal system - namely, the serious concerns with the overwhelming modern racial disparities in removals, which directly flow directly from racial disparities in the operation of the modern criminal justice system in the United States. The contemporary criminal removal regime has disparate impacts on Latina/o immigrants, who today comprise the overwhelming majority of the persons deported from the United States. In fact, the modern removal system might accurately be characterized as a Latina/o removal system. The racial impacts of contemporary criminal removals alone warrant a wholesale reconsideration of criminal removals under current American immigration law.

Part III considers separation of powers concerns in the administration of the immigration laws. Jason Cade indirectly raises a critically important question concerning the branch of the federal government that is best equipped - constitutionally and politically - to curb the excesses of the modern criminal removal system. Fundamental separation of powers principles suggest that Congress should be the focus of reforms.

The challenging political question posed to reformers is how to convince Congress to dismantle the mandatory criminal removal regime that it built. As politicians frequently employ anti-immigrant themes for political gain, noncitizens with criminal convictions continue to be among the most reviled of all immigrants in American politics. Only through a political change of heart can Congress begin to restore discretion to removal decisions and better ensure that respect is afforded to the weighty human interests of immigrants, their families, and communities.

"The Law of Look and Feel" 
UC Davis Legal Studies Research Paper No. 482

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Design is the currency of corporations, and increasingly, under the Demsetzian logic, the subject of property claims by them. The world's biggest company owes its value largely to design. Where once Apple's claim to own its popular graphical user interface was rebuffed readily by courts, today, design-related claims lead to billion dollar judgments in Apple's favor. Today design - which includes everything from shape, color, and packaging to user interface, consumer experience, and organizational structure - plays a central role in the modern economy and is increasingly the subject of intellectual property law's attention.

But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark and trade dress, and patent law. Indeed, while nearly every area of modern IP law has been marshalled in the service of design protection, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions to design protection. To make matters worse, different disciplines within IP use similar terms and concepts - functionality, consumer confusion - but apply them in wholly different, even contradictory ways.

This Article provides the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trade dress, and patent law - what we call "the law of look and feel." We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac-Man to Louboutin shoes to the iPhone, from the "feel of the '70s" captured in Marvin Gaye's music, the scantily clad employees of Abercrombie & Fitch, and the décor of Mexican restaurants, to Apple's technologies of "pinch to zoom," "bounce-back" and "rubberbanding." In so doing, we identify an emergent "law of look and feel" that finds unity among the diversity of IP laws protecting aesthetic experience. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can in fact erode innovation, competition, and cultural cohesion itself.

"Justice in the Hinterlands: Arkansas as a Case Study of the Rural Lawyer Shortage and Evidence-Based Solutions to Alleviate It" 
University of Arkansas at Little Rock Law Review, Vol. 37, 2015
UC Davis Legal Studies Research Paper No. 481

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Quattlebaum, Grooms & Tull PLLC
Email: cmckinney@QGTlaw.com
BART CALHOUN, McDaniel, Richardson & Calhoun
Email: Calhoun.bart@gmail.com

In recent years, state high courts, legislatures, bar associations, and other justice system stakeholders have become aware that a shortage of lawyers afflicts many rural communities across the nation and that this dearth of lawyers has implications for access to justice. A lack of systematically collected data about precisely where lawyers are - and are not - in any given state is an obstacle to solving the problem. Another impediment is a lack of information about why lawyers are choosing not to practice in rural locales and about the sorts of incentives that might entice them to do so.

A principal aim of this article and the empirical work that informs it is to begin to develop evidence that will inform solutions to the rural lawyer shortage. In that regard, the article, written for the UALR Bowen "Access to Justice" symposium, makes two significant contributions. The first is to literally map where Arkansas lawyers are and then to look for trends and patterns regarding the least-served communities. The second is to survey law students and attorneys to determine their attitudes toward rural practice and rural living more generally, while also assessing openness to specific opportunities and incentives aimed at attracting lawyers to underserved communities.

We focused our analysis on Arkansas's 25 least populous counties, which we refer to as the "Rural Counties." All except one of these counties has a population of less than 15,000. Collectively, the Rural Counties are home to some 255,000 residents but fewer than 200 total lawyers, less than half of whom accept clients for representation, as signified by having an IOLTA Account. Representing a third of the state's 75 counties, the Rural Counties lie in clusters in each of the state's four quadrants, and most are relatively distant from state and regional population centers. Among these counties, we found no clear correlation between high poverty and low ratios of attorneys to population. As a general rule, the Rural Counties that are farthest from a metropolitan area have the most acute attorney shortages, although several counties in the Mississippi Delta stood out as exceptions. Not surprisingly, the attorney population in Arkansas's Rural Counties is an aging one. We also found that many other nonmetropolitan counties - those with populations somewhat larger than the Rural Counties - have poor attorney-to-population ratios, suggesting that attorney shortages are on the horizon there, too.

Meanwhile, Arkansas's attorneys tend to be highly concentrated in the state's population centers, with particular overrepresentation in Pulaski County (the state's most populous county and home to state capital Little Rock) and two contiguous central Arkansas counties: 48% of the state's attorneys are a mismatch for just 21% of the state's population in those three counties. The state's second and third most populous counties, Benton and Washington, in the state's booming northwest corridor, have attorney populations more commensurate with their populations.

Our survey of students at the state's two law schools revealed few student respondents who grew up in or had spent much time in Arkansas's Rural Counties or in similarly low-population counties in other states. Further, only a handful of students indicate that they plan to practice in the state's nonmetropolitan areas, let alone the Rural Counties specifically. Nevertheless, many students - particularly among those who grew up in the Rural Counties - expressed openness to working in these counties if given specific opportunities and incentives to do so. When asked about what deterred them from pursuing rural practice, the most dominant theme was concern about economic viability; a lack of cultural and other amenities associated with urban living was a close second. Some students also expressed concern about the greater challenge of finding a life partner in rural places. A number of students expressed very negative attitudes toward rural people, places and practice. Recurring themes included an expectation of rural bias toward racial and sexual minorities and women; concerns about lack of anonymity in the community and lack of professionalism in the justice system; and a shortage of clients able to afford an attorney's services. Still, a critical mass - certainly enough to meet the need in Arkansas's rural communities - indicated willingness to practice in a rural locale if provided fiscal and professional supports, e.g., student loan repayment assistance, mentoring, training in law practice management. When the few students who indicated their intent to practice in a rural area were asked about what they found appealing about such a prospect, the most common theme was autonomy - the ability to have one's own practice and to develop and maintain local clientele.

Respondents to the lawyer survey were generally less negative about rural practice than their law student counterparts. On the whole, most attorneys expressed contentment with their practice location, whether rural or urban. One surprise among the lawyer survey results was that employment opportunities for spouses were less important than we anticipated, perhaps because urban lawyers - the vast majority of survey respondents - take these for granted.

We close with suggested reforms for Arkansas's institutional stakeholders. Among other actions, we suggest that Arkansas follow the lead of South Dakota and offer loan repayment assistance to attorneys who are willing to make a multi-year commitment to practice in an underserved rural area. This incentive has proved popular in South Dakota, which has doubled the size of its program in just two years in response to a high degree of attorney interest. Our survey results give us every reason to believe that such a program, as well as other interventions to bolster the rural lawyer population in Arkansas, could be just as successful. In any event, we anticipate that our efforts to document in detail the rural attorney shortage in Arkansas will provide an incentive - and, we hope, a model - for other states wishing to better understand and alleviate their rural access-to-justice deficits.

"How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study" 
UC Davis Law Review, Vol. 49, 2016
UC Davis Legal Studies Research Paper No. 477

DONNA SHESTOWSKY, University of California, Davis - School of Law
Email: dshest@ucdavis.edu

This Article presents findings from the first multi-court field study examining how civil litigants evaluate the characteristics of legal procedures shortly after their cases are filed in state court. Analyses revealed that litigants evaluated the characteristics in terms of control - i.e., whether the characteristics granted relative control to the litigants themselves or to third parties (e.g., mediators, judges). Although the litigants indicated a desire to be present for the resolution process, they preferred third-party control to litigant control. They also wanted third parties to control the process more than the outcome. Gender, age group, and case-type significantly predicted attraction to third-party control, whereas attraction to litigant control was predicted by whether litigants had a pre-existing relationship with each other, how much they valued a future relationship with the opposing party, party type, the type of opposing party, and court location. Implications for legal policy and lawyering are discussed.

February 23, 2016

Commentary on Jason Cade's Return of the JRAD

Cross-posted from ImmigrationProf Blog.

Last October, the ImmigrationProf blog highlighted Jason Cade's article Return of the JRAD, which was published by NYU Law Review on Line. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. Return of the JRAD calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a "Judicial Recommendation Against Deportation" (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States.  Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by respected federal district court judge Jack Weinstein. In United States v. Aguilar, the judge issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children. 

The law review is publishing a number of responses to Cade's article.  Here is a draft of my response.  

Although one might dismiss Judge Weinstein's recommendation in United States v. Aguilar as mere dicta, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the immigration laws. He seeks to return discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

Part I of my response expresses full agreement with Jason Cade's conclusion in Return of the JRAD that the modern criminal removal system fails to protect against unfair removals of immigrants.

Part II adds a powerful justification to the call for the reform of the modern criminal removal system - namely, the serious concerns with the overwhelming modern racial disparities in removals, which directly flow directly from racial disparities in the operation of the modern criminal justice system in the United States. The contemporary criminal removal regime has disparate impacts on Latina/o immigrants, who today comprise the overwhelming majority of the persons deported from the United States. In fact, the modern removal system might accurately be characterized as a Latina/o removal system. The racial impacts of contemporary criminal removals alone warrant a wholesale reconsideration of criminal removals under current American immigration law.

Part III considers separation of powers concerns in the administration of the immigration laws. Jason Cade indirectly raises a critically important question concerning the branch of the federal government that is best equipped - constitutionally and politically - to curb the excesses of the modern criminal removal system. Fundamental separation of powers principles suggest that Congress should be the focus of reforms.  The challenging political question posed to reformers is how to convince Congress to dismantle the mandatory criminal removal regime that it built. As politicians frequently employ anti-immigrant themes for political gain, noncitizens with criminal convictions continue to be among the most reviled of all immigrants in American politics. Only through a political change of heart can Congress begin to restore discretion to removal decisions and better ensure that respect is afforded to the weighty human interests of immigrants, their families, and communities.

February 22, 2016

Confirmation and Clarity

Cross-posted from Dorf on Law.

Following the untimely passing of Associate Justice Antonin Scalia, the nation is engaged in a vigorous debate over whether the Republican-controlled Senate should confirm President Obama's nominee to replace Justice Scalia on the Supreme Court (President Obama has made it quite clear that he intends to nominate a successor).  Senators (and presidential candidates) Ted Cruz and Marco Rubio have both argued strongly against even voting on a replacement nominated by President Obama, leaving the decision for the next President.  Senate Majority Leader Mitch McConnell has also expressed this view, though other Republican Senators are waffling.

The discussions about historical precedents have become frankly tedious (and entirely partisan).  They are also beside the point.  There is no doubt that the Senate has the power to refuse to vote on a nominee, or to vote down a nominee, for purely partisan reasons or to await an election.  And what path the Senate does eventually walk will undoubtedly turn on a political calculation by the Republican leadership rather than either precedent or principle.  That is politics.

What I want to address is a separate matter, which is the practical, legal consequences of a decision by the Senate to refuse to confirm any Obama nominee. It is now February of 2016.  The Supreme Court holds one term a year, beginning on the First Monday in October, and ending in June or early July (the Terms are named for the October in which they start, so we are in the October 2015 Term, or OT 2015 in the jargon).  The last oral arguments for OT 2015 will be held on April 27.  That means that unless a new Justice is nominated and confirmed before that date, the appointee cannot participate in any case before the Court this Term.  Given the current atmosphere on Capitol Hill, clearly that is not going to happen.  So, almost all the cases this Term (excepting those decided before Justice Scalia's death) will be decided by an 8-Justice Court, split evenly between appointees by Republican and Democratic Presidents.  Given the hugely important issues pending before the Court currently (including the future of public sector unions, abortion regulation, affirmative action, and the President's immigration policies, to name just a few), that is very unfortunate.

But it gets worse.  Whoever wins the 2016 presidential election will be inaugurated on January 20, 2017 (per the Twentieth Amendment).  Even if the President-elect has focused on the question of a nominee to replace Justice Scalia before taking office, a proposition which is far from clear given the complexities of any presidential transition, realistically the earliest he/she could send a nomination to the Senate would be early February of 2017.  Then, hearings must be held and a vote taken.  It took 87 days for the Senate to confirm Justice Kagan, 66 days for Justice Sotomayor, and 82 days for Justice Alito.  They are the three most recent nominees on whom the Senate has held a vote, and the only relevant case studies since the 1990s (Chief Justice Roberts does not count because his nomination to an Associate Justice position on the Court had been pending for quite some time before Chief Justice Rehnquist died and he was re-nominated to the Chief Justiceship). Given that partisan rancor has hardly decreased since Kagan's nomination in 2010, this means that we can expect around two-and-a-half to three months at a minimum to pass before a new Justice could be confirmed, if they are confirmed, which puts us in late April or early May.  The last day of oral argument for OT 2016 is April 26, 2017.  Realistically, therefore, if no Obama nominee can be confirmed, the Court will be without a full complement for essentially two entire Terms.

Why is this a problem?  Because the most important job of the Supreme Court is to provide clarity and legal certainty.  Certainly Justice Scalia, the author of a law review article titled "The Rule of Law as a Law of Rules," would have agreed.  But the Court cannot provide certainty if it cannot decide cases and establish a uniform legal rule for the entire nation.  Consider one issue before the Court this year in a case called Zubik v. Burwell:  whether the exemption the Obama Administration has granted religious nonprofits from the contraceptive mandate in Obamacare is legally sufficient. The lower courts are divided on this issue, and it is frankly an extremely difficult and contentious one.  It would be extremely useful, for nonprofits, for the government, and for the public, to know the answer, whatever it might be.  But if the Court splits 4-4 in the case, as is likely, no answer will be forthcoming until 2018 at the earliest (assuming a new case comes to the Court in OT 2017).

Nor is Zubik an anomaly.  It is widely understood, and the Supreme Court's own rules recognize, that perhaps the most important function the Court plays is to resolve "splits," meaning legal disagreements among lower courts.  Many of these splits arise over highly technical, politically invisible issues that get no press coverage, but nonetheless affect the lives of thousands or millions. But they are very often difficult, close issues, because, after all, highly-qualified lower court judges disagreed as to the outcome.  As a result, an 8-Justice Court can be expected to regularly divide evenly on a substantial fraction of them, often on lines that have no partisan correlation.  The result:  continuing legal uncertainty and division.

My basic point here is simple: clarity and legal certainty matter, often more than how legal disagreements are resolved.  The current partisan impasse between the President and the Senate threatens to create substantial, prolonged legal uncertainty on the Supreme Court on many important issues. That is bad for Democrats, bad for Republicans, and bad for the United States.

February 17, 2016

The Missing Discussion of Race and Xenophobia in the Ted Cruz Citizenship Controversy

Cross-posted from PrawfsBlawg.

The debate about Ted Cruz's eligiblility to the presidency, whether he is a natural born citizen (NBC), shows no sign of abatement or conclusive resolution. Eric Posner, Einer Elhauge, Robert Clinton, and Sol Wachtler voted nay, Jack Balkin and Laurence Tribe debated the issue at Harvard, Akhil Amar supports Senator Cruz's eligibility here and here. Former university president Donald Trump has threatened a lawsuit; according to his website, Ted Cruz is eligible. And in a free country, he should be.

Nevertheless, irony abounds, as Professor Tribe wrote, because Senator Cruz is an originalist, but the best arguments for his eligibility are based on progressive readings of the Constitution and US law.  There is another level of irony not yet considered.  Cruz's immigration policy is punitive and harsh, and has introduced what seems to be a patently unconstitutional law to expatriate U.S. citizens. The joke is that historical discrimination embodied in US immigration and naturalization law, of a type that he apparently hopes to revive, make his case for natural born citizenship a heavy lift.

Michael Ramsey, an important and influential scholar on the topic, recently updated his paper about British practices, which argues that "the Framers conveyed to Congress, through the naturalization clause, the power to define 'natural' birth."  While there is wide agreement that the question is difficult, the paper has persuaded me and, for example, Akhil Amar and Jack Balkin.

Critically, the paper reserves the question of whether Congress actually exercised this power to benefit Senator Cruz. (p. 37, n.138) Evaluation of that question requires recognizing the racism, sexism, and xenophobia dominating U.S. citizenship (and immigration) law from the founding until the civil rights revolution.  For example, the naturalization acts of 1790 and 1795 restricted naturalization to "free white persons," a qualification in effect for more than a century and a half.  Reading the relevant legal materials in light of these traditions raises doubt that Congress granted natural born status to people in Ted Cruz's situation.

Here is the problem. Congress only once purported to grant NBC status to foreign-born children of U.S. citizens, in the Naturalization Act of 1790. In the Naturalization Act of 1795 and every subsequent citizenship law, including the Fourteenth Amendment, Congress never mentioned "natural born." Congress grants only citizenship.  Many commentators contend that these acts are critical.  The 1790 Act shows that Congress intended to grant foreign-born children of U.S. citizens natural born status (and had the power to do so, given that many members of the first Congress were Framers of the Constitution.)   The 1795 Act shows that Congress intended to grant NBC status even without using the words "natural born", and, by implication, has done so ever since. 

Professor Ramsey's paper finds the legislative history of the 1795 Act inconclusive regarding the import of the elimination of natural-born status, and that the 1795 law's main effect was to extend the period of U.S. residence required for naturalization. (9-10) I read the 1795 Act as much more restrictive.  In addition to lengthening the residence requirement, the 1795 law: (1) established a monitoring regime by creating the longstanding requirement of filing a declaration of intention to become a citizen; (2) strengthened the required oath, requiring, in addition to supporting the Constitution, that the person "absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever"; (3) required renunciation of any hereditary titles; and (4) excluded from naturalization those convicted of having joined the army of Great Britain during the Revolutionary War.  The 1795 Act unquestionably reflects greater suspicion of noncitizens than its predecessor; perhaps it was a step toward the Alien and Sedition Acts a few years later. 

The 1795 Act's most critical change linked the kind of citizenship granted to foreign-born children of U.S. citizens to that granted foreign-born children of naturalized citizens.  When their parents naturalized, the 1790 Act had made noncitizen children under 21 "citizens of the United States."  In a separate provision, the 1790 Act made children of US citizen parents born overseas "natural born citizens."  The 1795 Act merged the two provisions. The combined provision made children in both categories "citizens of the United States." Thus, in 1795 Congress did not merely eliminate the words "natural born citizen;" it apparently intended two formerly distinct groups to be treated identically.  It is unlikely that Congress used "citizen" synonymously with "natural born citizen." That is, presumably, Congress did not mean to grant noncitizens presidential eligibility if they became citizens as teenagers upon their parents' naturalization. 

Under the circumstances, it seems fair to apply the canon that "change of language strongly implies an intent to change the object of legislation," United States v. Fisher, 6 U.S. 358, 388 (1805) (Marshall, C.J.), and therefore to conclude that the 1795 Act reflects the decision of Congress not to grant natural born status to overseas-born children of U.S. citizens.  That many in Congress in 1795 were Framers is as important as it was with the 1790 Act: It is impossible that the significance of voting to eliminate the words "natural born" was lost on James Madison and other drafters of the Constitution. I am aware of no indication in text or legislative history that Congress in any later naturalization or citizenship legislation desired to grant "natural born" status to any children born out of the United States.  (I assume that in recent decades Congress has given the issue little thought.)

There is another curve-ball.  Congress sometimes declares noncitizen adults, retroactively, to have been citizens "at birth."  For example, in 1994, Congress enacted 8 USC 1401(h), granting citizenship and nationality "at birth" to people born overseas to U.S. citizen mothers before the date in 1934 when female U.S. citizens were granted equal rights to transmit citizenship to their children.  Congress can at its pleasure grant retroactive citizenship for many purposes (such as to make the new citizen's existing children, retroactively, U.S. citizens "at birth"), but it seems doubtful that Congress can make NBCs out of people who were not citizens at all when born.  If so, then it cannot be assumed automatically that Congress intends to exercise its NBC power every time it grants citizenship "at birth"; perhaps Congress simply wants the beneficiaries, in law, never to have been "aliens" or has some other motive.

Senator Cruz's citizenship did not rest on the long-superseded 1795 Act; the applicable provision (Section 301(a)(7) & (b) of the 1952 Immigration Act) was written in the 1930s. But that also was the era of the "white America" naturalization policy.  As discussed before, Congress granted people with one US citizen parent only conditional citizenship, which automatically expired unless specific steps were taken to retain it. The retention requirement was imposed because of the potentially questionable loyalty of a person with only one US citizen parent, born in a foreign land. 

Applying "strict construction" and "neutral principles" to the words enacted by Congress, Senator Cruz may be in trouble. To conclude that he is an NBC requires, first, acceptance of Professor Ramsey's compelling but controversial theory about the breadth of congressional power under the naturalization clause. Next, it requires the assumption that Congress sub silentio intended to grant natural born status, when their last word on the subject was directly to the contrary. Third, it requires the assumption that by citizenship "at birth" Congress always means "natural born citizenship," when the 1994 amendment, I believe the most recent, makes clear that is not the case. Finally, it requires an assumption that Congress intended to grant presidential eligibility to a class that it distrusted to the point that it made their citizenship temporary.

Again, Senator Cruz should be eligible; the natural born citizen clause is confusing and illiberal. The cleanest resolution would be constitutional amendment; next best would be a statute not about Cruz as an individual but declaring that all citizens at birth are natural born. For whatever reason, both seem nonstarters. But there are other routes, based on progressive readings of the law, or originalism rooted in the Reconstruction Amendments.

On the principle that amendments can impliedly repeal earlier, inconsistent constitutional provisions, perhaps the NBC clause did not survive enactment of the Fourteenth Amendment. The Fourteenth Amendment itself, notably, makes no "natural born citizens," those born in the U.S. are merely citizens, yet this is the only provision for citizenship in the Constitution. The Framers of the Fourteenth Amendment must have contemplated that those born in the United States would be eligible to the presidency, yet it made them mere citizens. Perhaps this should be read as a determination that citizenship at birth suffices.

Alternatively, perhaps on the theory that acts of Congress and jurisprudence created in a pre-modern era should be eyed suspiciously, the broad immigration and naturalization powers recognized in Congress should be subject to far more searching judicial review. On that principle, it might be that, contrary to current doctrine, Congress may not make citizenship contingent. Indeed, perhaps Senator Cruz is a natural born citizen because, again contrary to current law, Congress must grant unconditional natural born citizenship to children of U.S. citizens born overseas.

Finally, relying on the democracy canon, Rick HasenSandy Levinson, Akhil Amar and others propose that there should be a heavy thumb on the scale on the side of finding Senator Cruz eligible. 

Any of these, or others, might prove sufficient to make Senator Cruz eligible. But they would also require invalidation of some of his beloved legal ideas. So I hope The Donald files a lawsuit, and Senator Cruz is found eligible, but based on genuinely neutral principles of law that will be equally available to others who do not happen to be in the Senate.

February 17, 2016

Scalia Allowed Racial Profiling

This opinion essay originally appeared in The Sacramento Bee on February 16, 2016.

Appointed to the U.S. Supreme Court by President Ronald Reagan in 1986, Justice Antonin Scalia was often described as the intellectual anchor of the court's conservative wing. After his death, many commentators are reviewing his body of work, notably his interpretations of the Constitution, as well as his acerbic attacks on his colleagues' opinions and angry dissents, such as in the gay marriage cases.

He also leaves a legacy on a matter critically important to daily criminal law enforcement across the nation. Deadly encounters of people of color with law enforcement regularly make the news, including deaths in Ferguson, Baltimore and Cleveland that have led to sporadic outbursts of unrest.

Many Americans, including both Republican and Democratic political leaders, have condemned police reliance on racial stereotypes. But few are aware it was the Supreme Court, through Scalia's 1996 opinion in Whren v. United States, that made racial profiling in ordinary criminal law enforcement the law of the land.

Late one night in June 1993, two vice squad officers were patrolling a high-crime Washington, D.C., neighborhood in an unmarked vehicle. They saw two African American men in an SUV and stopped the vehicle for a traffic violation. (One can only wonder why vice officers would trouble themselves with a traffic stop.) The officers found crack cocaine and arrested the men. The defendants later argued that the traffic violation was only a pretext for a stop based on race - thus violating the Fourth Amendment ban on unreasonable searches and seizures.

Writing for a unanimous court, Scalia found that the vehicle stop did not violate the Fourth Amendment because the police had probable cause to believe a traffic infraction had been committed. To Scalia, it did not matter whether the officers admittedly used the violation as a pretext to stop the vehicle because the occupants were black.

He reasoned that any claim of racial discrimination by police fell outside the Fourth Amendment. Instead, he concluded, such a claim was properly brought under the equal protection guarantee of the Fifth and Fourteenth amendments.

But what his logic failed to capture was that equal-protection claims are extremely difficult to prove. A plaintiff must demonstrate that the police acted with a discriminatory intent - not simply that the action, practice or policy had a discriminatory impact on racial minorities. Understandably, plaintiffs can rarely produce the evidence necessary to establish guilty intent. Police officers generally can show there was no discriminatory intent by pointing to a race-neutral reason, such as a minor traffic violation, for the stop.

Put simply, Scalia's constitutional logic failed to ensure that the Constitution would be enforced to protect against racial discrimination. The Whren decision effectively authorizes traffic stops by police based on race. As a result, racial profiling is integral to a criminal justice system that critics contend is, at bottom, racially biased.

In the end, one of Justice Scalia's legacies is the existing problem of racial injustice in law enforcement. As public protests have shown, much remains to be done to remove the taint of racial discrimination from criminal law enforcement.

February 16, 2016

UC Davis Capitol Speakers Series

This Friday, I am speaking about the UC legal services program for undocumented students as part of the UC Davis Capitol Speakers Series.

Here are the announcement and flyer:

UC Davis Capitol Speakers Series: Law Dean to Discuss Legal Services Program for Undocumented Students

The University of California has constructed a form of student services never before seen in higher education. With the UC Undocumented Legal Services Center, UC is demonstrating exactly how it is on the leading edge of serving the unique needs of undocumented students and their families in the Golden State.

On February 19, the UC Davis Capitol Speaker Series presents Dean Kevin R. Johnson of the School of Law. In his presentation titled "Integrating Immigrants into the Community:  The UC Undocumented Legal Services Center," Johnson will explain how this innovative program promotes inclusion and helps to protect some of UC's most vulnerable students.

What: UC Davis Capitol Speakers Series

When: Friday, February 19, 2016 from 12:00 P.M. to 1:30 P.M.

Where: California State Capitol, Room 126

To RSVP, please contact Tammy Heath at tmheath@ucdavis.edu.

February 11, 2016

Symposium: United States v. Texas – The road to perpetual immigration gridlock?

Crossposted from SCOTUSblog.com:

Symposium: United States v. Texas - The road to perpetual immigration gridlock?

 

United States v. Texas raises critically important legal issues concerning the discretion of the executive branch in the enforcement of U.S. immigration laws. Moreover, if allowed to stand, the Fifth Circuit's finding that Texas has standing to derail discretionary federal immigration enforcement decisions could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement. As the Court explained three Terms ago in Hollingsworth v. Perry, the use of litigation as a political tool, as Texas and other states are doing, is precisely the kind of suit that Article III standing doctrine seeks to prevent.

Background

For years, Congress has been embroiled in a contentious debate over immigration reform. With a congressional stalemate, a number of states passed immigration enforcement laws ostensibly intended to "assist" the federal government in immigration enforcement - even though the U.S. government claimed that those efforts undermined federal enforcement authority. In 2012, in Arizona v. United States, the Supreme Court struck down core provisions of one of those laws, Arizona's controversial S.B. 1070. Making it clear that federal power over immigration was preeminent, the Court emphasized that the U.S. government had great discretion over immigration enforcement. By so doing, the Court staved off further state and local immigration initiatives that interfere with federal immigration authority.

To this point in time, House Republicans have blocked immigration reform. President Barack Obama responded in a measured way. Consistent with a long history of the use of prosecutorial discretion by the executive branch in removal - as well as other law enforcement - decisions, the administration in 2012 implemented the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary relief to undocumented immigrants who had been brought to this country as children and are now young adults. In 2015, the Obama administration announced an expanded Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

Twenty-six states, with Texas leading the charge, challenged DAPA under the Administrative Procedure Act and the Take Care Clause of the Constitution. A district court in the Southern District of Texas enjoined the program's implementation. A divided panel of the U.S. Court of Appeals for the Fifth Circuit affirmed.

In the end, opponents of immigration reform have been able to use litigation in federal court to put on ice a major immigration initiative of the president. The damage is done. Even if the Supreme Court upholds DAPA, there might not be time to implement the program while President Obama is in office.

Standing

A majority found that, because it had demonstrated that it would incur costs by issuing subsidized driver's licenses to DAPA beneficiaries, one state - Texas - had established Article III standing. (Why the showing of injury by one state justifies a nationwide injunction of a federal program is an entirely different question.) In making that finding, the Fifth Circuit looked to Massachusetts v. EPA, the 2007 decision in which the Supreme Court found that Massachusetts had standing to challenge the Bush administration's failure to regulate greenhouse gases.

The alleged fiscal injury to Texas is considerably more attenuated than the loss of coastal land by Massachusetts in Massachusetts v. EPA. Moreover, the injury alleged by Texas is self-inflicted, given that the costs result from Texas's decision to issue the licenses to DAPA recipients (and its further decision to subsidize the processing costs), not any mandate of the federal government.

In the Fifth Circuit, Judge Carolyn King dissented from the majority's finding that Texas had standing to challenge DAPA. She observed that "[t]he majority's breathtaking expansion of state standing would inject the courts into far more federal-state disputes and review of the political branches than now is the case." King relied on the words of none other than John Roberts, who before joining the Supreme Court wrote for the Duke Law Journal that "[b]y preserving the proper bounds of Article III standing, the judiciary prevents itself from 'aggrandiz[ing] itself . . . at the expense of one of the other branches.'" Roberts was defending the Court's 1992 holding in Lujan v. Defenders of Wildlife that environmental organizations lacked standing to challenge federal regulations under the Endangered Species Act of 1973. Roberts noted that, although standing doctrine barred the plaintiffs from federal court, Congress could take the action sought by the environmental groups:

Standing is an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction. It . . . derive[s] from and promote[s] a conception that judicial power is properly limited in a democratic society. That leaves greater responsibility to the political branches of government - however they are inclined.

The possible impacts of affording Texas standing to sue

The broad notion of standing pursued by political actors in this case is inconsistent with the limited jurisdiction of the federal courts under Article III. The Fifth Circuit's liberal standing rule would open the door to state challenges, based on partisan political concerns, of many immigration enforcement decisions, as well as many other policy initiatives by the federal government.

Consider one possibility. At the same time that it announced DAPA, the Obama administration dismantled a broad criminal removal program - known as Secure Communities - and replaced it with a narrower one - known as the Priority Enforcement Program - that focused on immigrants convicted of serious crimes. Should the states have standing to challenge the new PEP program, contending that the injury suffered is possible increased crime costs? Such a claim is not readily distinguishable from the challenge in this case. If the Court finds that Texas has standing to challenge DAPA, one could also anticipate efforts by the states for partisan political reasons to employ lawsuits in the federal court to interfere with the executive branch in its discretionary judgments about how to enforce myriad laws - from the Internal Revenue Code to the environmental laws - passed by Congress.

The fact that there are states on both sides of the litigation in this case reflects the political nature of the dispute. Disagreeing with Texas and the other twenty-five states, fifteen states - including California, New York, and the District of Columbia - filed an amicus brief supporting the grant of certiorari that characterizes the alleged injury to Texas as "illusory or self-inflicted" because there is no requirement in DAPA or elsewhere in federal law that the states issue driver's licenses, much less subsidized ones to DAPA recipients. These states forcefully claim that the alleged harm "does not justify using the federal courts to achieve a political victory that Plaintiffs could not achieve through the political process."

Immigration reform is a contentious policy issue best left to the political branches of government. The litigation in this case in fact is part of a larger political struggle. Some political actors disliked the Obama administration's discretionary policy judgment and went to federal court to stop that policy from being implemented (a ploy that apparently could not have been secured through Congress). The use of the federal courts as a political weapon in a national debate was precisely what the framers of Article III of the Constitution sought to prevent.

 

February 5, 2016

UC Davis Law Review, Volume 49, Issue 3

The editors of the UC Davis Law Review just sent this message to the law faculty. The new issue looks outstanding. Congratulations to the UC Davis Law Review!

Dear King Hall Faculty,

We invite you to read the UC Davis Law Review, Volume 49, Issue 3, at http://lawreview.law.ucdavis.edu/issues/current-issue.html. Please see the linked table of contents below. We are particularly fortunate that Professor Donna Shestowsky contributed our lead article, which is also featured on our home page, lawreview.law.ucdavis.edu.

We hope that you will consider submitting your manuscripts to us when we open later this month, and that you will encourage your colleagues to submit theirs. Thank you for all of the support you give us!

Sincerely,

The UC Davis Law Review

UC Davis Law Review • Vol. 49, No. 3, February 2016

Articles

Note