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July 5, 2016

United States v. Texas: The Supreme Court Punts, Returns the Political Question of Immigration Reform to Congress

By Kevin R. Johnson

[Crosspost from ImmigrationProf Blog]

A little over a week ago, an equally divided Supreme Court left intact a lower court injunction barring the implementation of a major immigration initiative of the Obama administration. The program and litigation had proven to be controversial. Not surprisingly, most of the voluminous commentary about the case has focused on the power of the President vis-à-vis Congress to regulate immigration, the plight of the undocumented immigrants who might have been eligible for temporary reprieve under the program, the role of the states in future immigration policies, and related issues.

It should not be surprising that little of the commentary has focused on the real legal issues before the Supreme Court. Raising legal issues that only a law professor could love, the case really is about something much deeper and much more important to the United States. The case is simply the latest skirmish in the long political debate over immigration reform. As seen with the recent Brexit vote – in which concerns with immigration contributed to passage of a referendum removing the United Kingdom from the European Union, American immigration politics – as historically has been the case -- can be messy, divisive, and heated.

With no success, Congress has debated comprehensive immigration reform bills for more than a decade. Some versions of the reform bills would have offered a path to legalization for the 11-12 million undocumented immigrants living in the United States. Various incarnations of the DREAM Act would have provided relief to undocumented youth.

Because of the lengthy stalemate in Congress, President Barack Obama announced measured, limited, and temporary steps to address some of the issues facing this nation’s undocumented immigrants.

In November 2014, the Obama administration announced a “deferred action” program, Deferred Action for Parents of Americans (DAPA) for the undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was implemented in the summer of 2012. DACA provided limited and temporary relief to hundreds of thousands of undocumented young people and was viewed as a ray of hope at a time when improvements through congressional action looked bleak. DAPA would have provided similar relief to many more.

“Deferred action” is fancy language that means that the U.S. government will not focus on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law. Deferred action is not a path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal, revocable at the will of the Executive Branch (and thus by a new President).

Nobody, including President Obama, disputes that only Congress could create a durable path to legalization or citizenship for undocumented immigrants.

Although cloaked in the language of the law, the simple truth of the matter was that the Republican governor of Texas and 26 states did not agree with the Democratic administration’s policy choices. And, politically, they had little use for President Obama. They sued in federal court to put the immigration plan on hold and ultimately ended one of the Obama administration’s signature immigration measures. Fortunately, the Supreme Court with its even split did not create precedent that would allow the states in the future to pursue litigation for partisan political ends.

In the end, what began as a political question will return to the political arena after the Supreme Court’s non-decision in United States v. Texas. The question of immigration reform will return to Congress.

But even if the Supreme Court had upheld the administration’s immigration programs, Congress would still have needed – as it does now -- to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any and all deferred action recipients.

As the outcome of United States v. Texas should make clear, congressional action is necessary to reform the immigration laws. As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is needed. Last but not least, many Americans believe that we need better enforcement measures All of these aspects of immigration reform raise thorny political questions that require careful deliberation and rational discourse..

In the end, the nation needs to think about how we achieve meaningful and lasting immigration reform that works.

June 29, 2016

Big Immigration Cases in the 2016 Term

The 2015 Term of the Supreme Court just ended.  Next Term. the Supreme Court will review two potentially significant immigration cases.  Both implicate significant doctrinal issues of immigration law that have perplexed the courts for many years.  The Solicitor General sought review of adverse lower court decisions in both cases.

The cases are:

Jennings v. Rodriguez, No. 15-1204

Issue(s): (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien's detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.    

This immigration detention case will give the Court the chance to address immigrant detention, which has skyrocketed since 1996 immigration reforms.  The Obama administration has employed detention as an immigration enforcement tool and some immigrants have been held in detention indefinitely pending removal.  Because some nations have refused to accept some immigrants subject to removal, some immigrants have been indefinitely detained.  The circuits are split and the Supreme Court has decided a number of immigrant detention cases (Zadvydas v. Davis (2001) and Demore v. Kim (2003) in somewhat inconsistent fashion in the post-1996 era.  Indefinite detention without bond possibilities are unheard of with respect to criminal defendants.  The lower courts have reached different conclusions on immigrant detention issues.

Lynch v. Morales-Santana, No. 15-1191

Issue(s): (1) Whether Congress's decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment's guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.    The Second Circuit agreed with Morales-Santana that the gender distinctions in the derivative citizenship provisions was unconstitutional.

The Supreme Court has been sharply divided on the lawfulness of gender distinctions in the laws granting citizenship to children.  See, for example, Flores-Villar v. United States (2011) and Nguyen v. INS (2001).  Besides the issue of gender stereotypes, Morales-Santana implicates the venerable plenary power doctrine , which historically has shielded the immigration laws from judicial review.  Although there have been "cracks" in the doctrine, it remains largely intact.

June 20, 2016

Breaking News: Supreme Court to Review Immigrant Detention Case

The Supreme Court did not decide United States v. Texas today.  It did grant certiorari in Jennings v. Rodriguez. (Download Jennings here.)

The issues in that case are 

(1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months;

(2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and

(3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien's detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.

The Ninth Circuit, in an opinion by Judge Wardlaw, affirmed in part and reversed in part the district court's order granting summary judgment and a permanent injunction in a class action lawsuit by non-citizens within the Central District of California challenging their prolonged detentions under civil immigration detention statutes 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings or determinations to justify continued detention.  The panel affirmed the district court's permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class's request for additional procedural requirements.

The panel held that subclass members subject to prolonged detention under mandatory detention statutes §§ 1225(b) and 1226(c) are entitled to bond hearings, and that subclass members subject to discretionary detention under § 1226(a) are entitled to automatic bond hearings after six months of detention. In an issue this court had not previously addressed, the panel held that the government must provide periodic bond hearings every six months.  

The Solicitor General in seeking review argued that

"The court of appeals' ruling also solidifies an acknowledged split of authority among the circuit courts of appeals. See Lora v. Shanahan, 804 F.3d 601, 614 (2d Cir. 2015) (describing the split and collecting citations). The Second Circuit has recently chosen to "follow the Ninth Circuit" and adopted the "bright-line approach," requiring bond hearings by the six-month mark for aliens detained under Section 1226(c). Lora, 804 F.3d at 615-616.6 By contrast, the Third and Sixth Circuits, while taking the position that detention without a bond hearing under Section 1226(c) is limited to a "reasonable" time, have squarely rejected the rigid six-month rule and instead assess reasonableness based on a case-specific balancing inquiry. See Ly, 351 F.3d at 271-273 (rejecting a ''bright-line time limitation"); Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011) ("We decline to establish a universal point at which detention will always be considered unreasonable."); see also Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 269 (3d Cir. 2012) (discussing "[t]he fact-dependent inquiry"); Chavez-Alvarez, 783 F.3d at 474 ("By its very nature, the use of a balancing framework makes any determination on reasonableness highly fact-specific.")."

June 19, 2016

Case Western Reserve Law Review Symposium on Whren

The Case Western Reserve Law Review published its symposium on the 20th anniversary of the Supreme Court's decision in Whren v. United States.

My contribution is included. Here is the link for "Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crime-Based Removals."

June 2, 2016

Debate on United States v. Texas for

I recently joined for a debate on its program Scholars Mate. The topic was U.S. v. Texas, a major Supreme Court case involving immigration and executive power.

Here is the video. Thanks to for the opportunity!

May 6, 2016

Justice Stevens Discusses Scholarship by Professor Chin

In a recent speech, retired U.S. Supreme Court Justice John Paul Stevens discussed Professor Gabriel "Jack" Chin's paper Effective Assistance of Counsel and the Consequences of Guilty Pleas

Justice Stevens relied on the paper in his majority opinion in Padilla v. Kentucky, 559 U.S. 356 (2010), which held that criminal defense attorneys were required to advise clients about the possibility of deportation.  As Justice Stevens noted, the Court also relied on Professor Chin's work in Chaidez v. United States, 133 S. Ct. 1103 (2013), holding that Padilla would not be retroactively applied to cases which were already final when it was decided.

May 4, 2016

Zubik v. Burwell: Women and Religion in the Market

Cross-posted from JURIST.

The US Supreme Court heard oral arguments in Zubik v. Burwell on March 23, 2016, six years to the day the Affordable Care Act (ACA) became law. The petitioners, a group of religious organizations, have challenged the ACA's contraceptive coverage requirement. The challenge is a free exercise claim under the Religious Freedom Restoration Act (RFRA) [PDF], a federal statute. The court has now heard four challenges to the ACA.

The contraceptive coverage requirement is part of a broader provision that requires coverage for preventive health care without cost-sharing. This provision serves the ACA goals of improving health care access and reducing health care disparities among populations. Even small co-pays create barriers to health care. The ACA emphasizes the importance of preventive health care by removing that barrier.

Cost-sharing mechanisms like co-pays reflect the fact that health care services are delivered in a commercial market. The ACA coverage requirement applies to FDA-approved contraceptives. Prices for drugs and devices in the US are among the highest in the world. Contraceptives are distributed within that market. Recent stories about the role of profit-motive in pharmaceutical pricing highlight new cancer drugs and Hepatitis C drugs that cost several hundred thousand dollars a year. Plain old oral contraception, the most widely used contraceptive, can cost close to $1,000 per year for those without insurance coverage. Intrauterine devices, a type of long-acting reversible contraception, typically cost $500 to $1,000. Those amounts are less than 1 percent of the highlighted examples, but they are a great deal more than many can afford. Because most FDA-approved methods are available on a prescription-only basis, obtaining contraception also requires the time and cost of visiting a doctor. Oregon and California have enacted law making some contraceptives (the pill, the ring and the patch) available over-the-counter, with a pharmacist prescription. Those laws make the doctor's visit, and the accompanying costs, unnecessary for most. People without coverage, however, will still face out-of-pocket costs for the contraceptives.

The contraceptive coverage requirement applies to employers who provide health insurance as a benefit. The Zubik petitioners are religious organizations who hire employees and run colleges. Their employees and students rely on petitioners for health insurance access, but do not all share the petitioners' religious objections to contraceptive use. The ACA provides accommodation for religious employers, which removes petitioners from the responsibility of paying for coverage and yet makes coverage available to employees and students. Petitioners, however, claim that submitting the one-page form to obtain the accommodation makes them complicit in providing contraceptives.

The arguments were fascinating. You can listen to or read [PDF] them. RFRA requires that petitioners show the contraceptive coverage requirement imposes a substantial burden on free exercise of religion. If petitioners can do that, the government must justify the burden by showing that the contraceptive coverage requirement is based on a compelling state interest and that there is no less restrictive means of achieving that interest. The justices and lawyers spent much of oral argument addressing the substantial burden requirement. In an exchange with Justice Kagan, Paul Clement, representing petitioners, distinguished between an authorization form and an opt-out form. Clement seemed to suggest that an opt-out form would not make petitioners complicit, while an authorization form would, and thus, substantially burden free exercise. Much of the substantial burden argument turned into a battle of analogies. Noel Francisco, also representing petitioners, characterized the coverage requirement as "seizing control." The most bandied-about analogy was "hijacking"-as in, by requiring contraceptive coverage, the government is hijacking the religious employers' benefit plans. Chief Justice Roberts fully embraced the hijacking analogy. In the meantime, Justices Sotomayor and Kagan challenged Clement on petitioners' analogy to military objectors during war. Clement agreed that laws penalizing conscientious objectors substantially burdened objectors' free exercise, but asserted the objectors had to affirmatively object, while petitioners should not have to in order to obtain accommodation.

Donald Verrilli represented the US government in arguments. (Because he is the US Solicitor General, the justices call him "General Verrilli.") He argued that the procedure for obtaining an accommodation would not substantially burden petitioners' free exercise of religion. He and Justice Alito spent some time in the weeds about the fact that employers with self-insured plans must submit not one, but two pieces of paper. The existing accommodation exempts religious employers from paying for contraceptives regardless of whether the plan is fully insured or self-insured. So the only difference is, in fact, the extra piece of paper.

Verrilli marshaled his time to address petitioners' proposed alternatives to the existing accommodation. Petitioners' briefs proposed that rather than obtaining contraceptive coverage through employer-sponsored or student insurance, employees and students could use Medicare, Medicaid, Title X, contraception-only insurance policies or individual policies purchased in the insurance marketplaces. Some of these proposals do not exist. For example, insurers do not offer contraception-only policies. Even if available, a separate policy might very well offer a different provider network than a petitioner's plan. All of the proposals, including individual policies, would raise barriers to access and undermine the purpose of requiring preventive care coverage without cost-sharing. None, as Verrilli pointed out, are available under existing law. Access to Medicare, Medicaid, Title X and the marketplaces would require significant amendment of eligibility laws.

Near the end of Verrilli's allotted time for argument, Sotomayor returned to the conscientious objector analogy. She distinguished conscientious objectors in wartime from the Zubik petitioners' challenge to the accommodation. In Sotomayor's view, conscientious objectors do not trigger regulatory power over third parties, but the effects of Zubik petitioners' request would rebound on petitioners' employees and students. Sotomayor's distinction points to the origins of the RFRA. Congress enacted RFRA in response to a 1989 Supreme Court decision called Employment Division v. Smith. The late Justice Scalia wrote the majority opinion, in which the court stated that the Constitution's Free Exercise Clause did not excuse an individual from complying with a generally applicable law. In other words, the Constitution does not require accommodation for those whose religious beliefs place them in conflict with the law. Scalia's opinion listed examples-laws requiring military service, payment of taxes and vaccination. RFRA passed with bi-partisan support. Many supporters worried that the Supreme Court had peeled back protection for members of minority religions whose beliefs are more likely to differ from majoritarian norms underlying law. In Smith, for example, the court rejected free exercise claims by two Native Americans who were fired and denied unemployment benefits after using peyote in a religious ceremony. Before Smith, the court had recognized free exercise claims by a member of the Seventh-day Adventist Church who was fired for refusing to work on Saturday, the Adventist Sabbath. In those two cases, exempting the religious claimants from state unemployment compensation laws did not interfere with others' rights. Exemption may have inconvenienced the state unemployment office, but it did not produce interference with third party rights.

With Scalia's death, it seems very likely the eight justices may split. Questions and statements in oral argument, as well as prior votes, indicate that Roberts, Alito, Thomas and perhaps Kennedy will hold that the existing accommodation violates petitioners' statutory rights under RFRA. Ginsburg, Breyer, Kagan and Sotomayor, on the other hand, seem likely to find no violation.

In the meantime, the court has taken an unusual step. On March 29, the court issued an order [PDF] directing the parties to file additional briefs. The briefs are to address "whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees." The Order includes an example for the parties to consider. What if petitioners contracted with an insurer and informed the insurer that they did not want to include contraceptive coverage and the insurer notified employees that it would "provide cost-free contraceptive coverage and that such coverage is not paid for by petitioners and is not provided through petitioners' health plan." The example echoes a hypothetical that Clement and Francisco used in arguments. They posited an "uber-insurance policy" that provides contraceptive coverage to all women in the US, as a counterpoint to the alleged hijacked plans offered by petitioners to employees and students. In essence, they described a private single-payer plan for contraception. Both the court's example and the uber-policy scenario rely on the fictional existence of contraceptive-only plans. Even if petitioners and five justices will this type of plan into existence, it would require significant government intervention in the market, as well as two forms of insurance and the possibility of two different provider networks for petitioners' employees and students.

The order and the question it poses signals what the vote will hinge on. More specifically, it indicates Kennedy's attentiveness to the complicity concerns and the fact that RFRA does not permit religious claimants to hijack the government's administrative and regulatory systems to implement an accommodation. The court may split along other lines, as well. Ginsburg asked whether religious organizations should necessarily receive the same protection under RFRA as a church. Kennedy asked whether a church organization should be treated the same as a university. As noted, petitioners consist of both church-affiliated organizations and religious universities. The questions suggest that universities may be less likely to receive accommodations that impose burdens on third parties. On the other hand, Ginsburg and Kennedy's questions may just have been aimed at Francisco's sweeping assertions about the RFRA's scope of protection for free exercise.

What should be notable is that because the parties to the case are religious employers and the federal government, people who use contraceptives-mostly women, are positioned as third parties. Yet, the so-called third parties have a significant stake in this case: health, autonomy and equality. When you set aside the analogies and hypotheticals, the case positions women between the privatization of health care and the religious beliefs of others.

April 18, 2016

Analysis of Oral Argument in United States v. Texas

Cross-posted from Immigration Prof Blog.

Here is the transcript to the oral argument earlier today in United States v. Texas, which raises the question of the lawfulness of the Obama administration's expanded deferred action program for undocumented parents of U.S. citizens and lawful permanent residents (known as DAPA) announced in November 2015.

Lyle Denniston analyzed the argument on SCOTUSBlog and reads the tea leaves as indicating a possible win for the Obama administration. 

The line-up of the advocates can be found here.

From reading the transcript, here are my thoughts on this much-anticipated argument:  

Standing under Article III of the U.S. Constitution is a threshold question.  As should have been the case, it was the subject of considerable questioning during the argument.  In the end, the Justices appeared to be divided on how a majority would ultimately come down on the question.  

Solicitor General for the United States Donald Verrilli was the first to argue.  The argument seemed to go generally as expected, with no big surprises.  Standing figured prominently in the argument from the outset. Apparently having standing on his mind, Chief Justice Roberts redirected Verilli to address the issue after Justice Ginsburg almost immediately after the argument began inquired about the merits. 

Although Verilli did get to briefly discuss the merits of the deferred action "guidance," the bulk of the questioning was on standing.  Verilli argued that Texas and the states lacked standing under Article III because (1) the alleged injury of increased costs of issuing driver's licenses to deferred action recipients was not redressable by the relief being sought; and (2) there was no concrete particularized injury to the states resulting from the administration's expanded deferred action program.

Chief Justice Roberts, who dissented in Massachusetts v. EPA, asked Verilli whether the injury in this case was "any more indirect and speculative" (Transcript p. 18, lines 3-5) from that one.  In that case, a majority held that Massachusetts had standing to challenge a failure of the Environmental Protection Agency to regulate greenhouse gas emissions. 

Justice Alito asked who would have standing to challenge a President's policy decision to have "open borders."   

Justice Breyer pushed the limits of the states' theory of standing by asking if Rhode Island would have standing to challenge a federal statute requiring that the states give a driver's license to every member of the armed forces and the federal government transferred 250,000 soldiers to Rhode Island. Justice Sotomayor also noted the potential expansiveness of a finding that Texas had standing and challenges to federal laws and regulations.

President/General Counsel of the Mexican American Legal Defense and Education Fund Thomas Saenz, next argued for three parent intervenors who would benefit from the expanded deferred action program. Although clearly he was primed on the merits, the Justices asked him about standing and Saenz responded credibly.  In arguing that the states lacked standing, Saenz  emphasized that"this is a political dispute. [The states challenging the Administration] do not agree with the policy adopted by the Administration . . . . " Transcript p. 39, lines 13-14. Along these lines, Justice Breyer later in the argument acknowledged that the case had "tremendous political valence." Transcript p. 61, line 5.

Chief Justice Roberts tried unsuccessfully to get Saenz to concede that a Texas policy denying deferred action recipients from driver's license eligibility would be unlawful. In response to a question from Justice Sotomayor, Saenz later noted that not every state makes deferred action recipients eligible for licenses. 

Texas Solicitor General Scott Keller (formerly Chief Counsel to Presidential candidate Ted Cruz), for the 26 states challenging the expanded deferred action programs.  He was asked more about the merits than the standing question. 

During Keller's argument, several Justices pressed an apparent compromise solution.  It involved the language in the administration's guidance affording deferred action recipients "lawful presence" and seems to have muddied the waters.  Removal of that language might be a possible way to defuse the dispute. Verilli initially raised this possibility.  When forced to address whether removal of the "lawful presence" language would be sufficient to address the issues raised by the states, Keller quoted language from the guidance: "Deferred action means that for a specified period of time, an individual is permitted to be lawfully present in the United States." (emphasis added).  Keller (and later Erin Murphy) stated that removal of the language would not be sufficient but it was unclear to me whether any of the justices agreed.

Another issue came up in discussion of the merits.  Under another regulation in place for decades, deferred action recipients and receive work authorization. That regulation was not challenged in this litigation.  Justice Kennedy intimated that, if that was the true problem in this case, it might would have been proper to challenge the regulation under the Administrative Procedure Act.

Erin Murphy, partner at the law firm Bancroft LLP, argued last on behalf of the U.S. House of Representatives as amicus supporting the states' challenge to the President's immigration guidance.  From a paper transcript, she appeared confident and pushed the envelope but did not have quite the grasp of the immigration laws of her colleagues.  Murphy, for example, at the outset stated that the administration adopted immigration reform that Congress considered and did not enact.  Justice Sotomayor quickly corrected Murphy and pointed out that the Obama immigration program in no way created a "pathway to citizenship" like that found in many comprehensive immigration reform proposals.

Four final points:

1.  Justice Kennedy viewed the case as one about the limits of discretion and suggested that the expanded deferred action programs constituted a legislative act by the President, which is "just upside down."  It was not clear to me of his take on the standing question.

2.  There was no questions from the justices on the "Take Care" argument based on Article II, section 3.  The Court had ordered the parties to brief the issue. Nor did any of the advocates raise the issue.

3.  Justice Thomas was silent at the oral argument.

4.  The argument did not highlight that the expanded deferred action programs were (1) temporary in nature and did not afford undocumented immigrants any kind of permanent relief; and (2) could be changed by a new President and/or Congress.

As we learned from the Affordable Care Act case, it is hazardous to predict how the Supreme Court will rule on a case based on the oral arguments.   After that argument, few commentators thought that Verilli and the Obama and administration would prevail; but they did.  Here, although the outcome is hard to predict with certainty, it appears that (1) standing in this case is a central issue to the justices: (2) the "Take Care" argument is not; and (3) winning is not a sure thing for either side.  Still, my instincts are that the Obama administration may come out okay in United States v. Texas in the end.

March 17, 2016

Live Stream Panel Discussion: The Legal and Political Implications of Replacing Justice Scalia

King Hall hosted an outstanding panel discussion yesterday on the Supreme Court nomination process, nominee Hon. Merrick Garland, and the jurisprudence of the late Justice Antonin Scalia.

Photo courtesy the law school's Instagram. Follow us on Instagram @ucdavislaw!

The participants were (left to right): Rose Cuison Villazor, me, Alan E. Brownstein, Albert C. Lin (a former Garland clerk!), Courtney Joslin, and Carlton F.W. Larson. We had a wide-ranging discussion about issues including originalism, Justice Scalia's jurisprudence regarding the separation of church and state, immigration, family law, and the Second Amendment, as well as the likely political battles ahead for Judge Garland, President Obama's nominee.

The event was live-streamed and archived on on YouTube. Watch it now!

Thanks to the student chapter of the American Constitution Society (ACS) and Aoki Center for co-sponsoring the panel!

March 14, 2016

Latino Leaders Call on Senate to Commit to Hearing and Vote for Supreme Court Nominee

María Blanco, Executive Director of the UC Undocumented Legal Services Center that operates out of King Hall, joins this press call tomorrow. Hispanics for a Fair Judiciary and the National Hispanic Leadership Agenda are hosting the call to discuss Senate leaders' threats to obstruct confirmation process. Here is their press release:

WASHINGTON - On Tuesday, Hispanics for a Fair Judiciary (HFJ), a non-partisan network of elected officials, legal, civil rights, labor, academic and political leaders, in association with the National Hispanic Leadership Agenda (NHLA), a coalition of the nation's 40 preeminent Latino advocacy organizations, will host a media call to discuss the pending nomination of a Supreme Court Justice. 
Representatives from the academic, legal, and advocacy communities will address the current gridlock affecting the Senate confirmation process for judicial nominations and discuss the consequences to the state of justice if Senate leaders fail to give President Obama's Supreme Court nominee a fair hearing and vote. HFJ and NHLA will also outline the steps they plan to take to encourage the Senate to act. 
Please find press conference details provided below. Opportunities for one-on-one interviews are available.

WHAT: Latino Leaders Call on Senate to Commit to Hearing and Vote for Supreme Court Nominee


  • Maria Blanco, Executive Director, Undocumented Legal Services Center, UC Davis School of Law
  • Juan Cartagena, President & General Counsel, LatinoJustice PRLDEF
  • Robert T. Maldonado, National President, Hispanic National Bar Association (HNBA)
  • Thomas A. Saenz, President and General Counsel, Mexican American Legal Defense and Educational Fund (MALDEF)
  • Hector E. Sanchez, Chair, National Hispanic Leadership Agenda (NHLA)

WHEN: Tuesday, March 15, 2016, 11:00 AM ET



Please have the Conference ID readily available to speed up the check-in process.