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Key Question In Immigration Court Fight: Is Obama Enforcing Deportation Laws Or Changing Them?

By David G. Savage and Timothy M. Phelps, Tribune Washington Bureau (TNS)

WASHINGTON — When President Barack Obama unveiled his plan to help as many as 5 million immigrants “come out of the shadows,” the White House insisted it was not rewriting law but merely using “prosecutorial discretion” to decide who should be deported first.

That argument ran off the rails in the 5th Circuit Court of Appeals this week, when conservative judges sided with Texas and upheld an order blocking Obama’s plan from taking effect.

Despite protests from the president’s lawyers, judges portrayed Obama’s latest executive action on immigration as a major change in the law, and one not approved by Congress.

It “would extend lawful presence to millions of illegal aliens on a class-wide basis,” said Judge Jerry Smith, and “affirmatively confer” a “host of federal and state benefits,” including, he said, a Social Security pension and Medicare hospital coverage.

The decision sets the stage for another highly partisan battle played out in the Supreme Court, with Texas and 25 Republican-led states on one side, and Obama and the Democratic-led states on the other.

The president’s lawyers may well face an uphill fight in the high court, where some justices have voiced skepticism over Obama’s bold use of executive authority. Twice, the high court has upheld Obama’s health care law against conservative challenges, but in those cases, Chief Justice John G. Roberts Jr. cast a key vote to preserve a liberal law that had won approval in Congress.

In the immigration area, by contrast, Obama has no new law to defend. A bipartisan reform measure died when House Republicans refused to take up a Senate bill that had won passage on a 68-32 vote. Only then did a frustrated Obama announce his executive action to “help make our immigration system more fair and just.”

Going forward, the key question will be: Is the president enforcing the immigration laws or changing them?

In public statements and legal briefs, Obama’s aides describe their immigration initiatives as limited and temporary. No one is offered “rights” or a “path to citizenship.” They speak of “case-by-case” determinations involving individuals, not changes that affect whole categories of people. They describe their policy with the phrase “deferred action” a term used in immigration law to mean the government had decided to put off the deportation of someone who could be sent home.

In 2012, the Department of Homeland Security announced Deferred Action for Childhood Arrivals, or DACA, to offer a temporary lawful status to as many as 1.2 million people who were brought to this country illegally as children. This policy did not face a strong challenge in court, in part because these immigrants could not be accused of deliberately violating the law when they crossed the border.

But last year, when the president and Homeland Security Secretary Jeh Johnson announced the much larger Deferred Action for Parents of Americans, or DAPA, lawyers for Texas and 25 other states filed a suit to block the plan. The president’s plan also included an expansion of DACA that could affect several hundred thousand additional immigrants.

Experts in immigration law knew the administration was skating near the edge when it announced changes that would affect as many as 5 million immigrants who were living in the U.S. illegally. On the one hand, they said the law had always given the executive branch the authority to decide whom to deport and to set priorities, such as focusing on those with criminal records.

But as Judge Smith saw it, the DAPA order went far beyond that by saying the government would not seek to deport immigrants who had lived with their American children for many years in the United States. That policy “would affirmatively confer ‘lawful presence’ and associated benefits to a class of unlawfully present aliens” numbering about 4.3 million, he said. His opinion was joined by Judge Jennifer Walker Elrod. Both were Republican appointees.

Judge Carolyn D. King, a Democratic appointee, dissented and described the new policy in a quite different way. “DAPA is merely a general statement of policy,” she said. It does not guarantee anything to anyone.

Solicitor General Donald Verrilli Jr., Obama’s top courtroom lawyer, is expected to file an appeal in the Supreme Court soon and urge the justices to rule on the case by next June.

Early this year, Obama’s lawyers hoped to get the Texas case thrown out on the grounds that the state had suffered no injury, and therefore had no standing to sue. But U.S. District Judge Andrew Hanen in Brownsville said the state could be forced to pay hundreds of thousands of dollars to help pay the cost of driver’s licenses for nearly a half-million immigrants in Texas, and that was a sufficient injury. He then issued a national order blocking Obama’s plan from going into effect, an aggressive use of his judicial power.

The 5th Circuit panel affirmed his decision this week, and it did so by relying on a liberal precedent from an environmental case.

A decade ago, environmentalists were upset that the Bush administration was not taking action against global warming, and a coalition of “blue states” led by Massachusetts and California sued, alleging a failure to fully enforce the Clean Air Act. The key question was whether these states could claim they had an injury that gave them standing.

In Massachusetts v. EPA, the court by a 5-4 vote ruled for the blue states and said they had standing because rising seas could take away parts of their beach fronts. Chief Justice Roberts sharply dissented.

In this week’s opinion, Judge Smith repeatedly cited the Massachusetts case as confirming that Texas had standing to challenge the Obama administration for not enforcing the laws against illegal immigration.

Immigration law scholars who have supported the administration believe Obama’s executive actions will be upheld in the end. The 5th Circuit ruling “flies in the face of several Supreme Court precedents granting the executive branch broad, almost unlimited, power on immigration issues,” said Cornell Law professor Stephen Yale-Loehr.

Verrilli’s first task, however, will be to win a quick hearing. If the justices vote to take up the case by January, it will be decided by next summer, which could give Obama’s team time to put the new policy into effect. But a delay could push the case to the fall, which could leave the 5th Circuit’s order in place until the president leaves office.

Photo: President Obama waves from Air Force One as he leaves Miami after a town hall meeting on immigration at Florida International University in Hialeah, Fla., on Wednesday, Feb. 25, 2015. (Pool photo by Pedro Portal/Miami Herald/TNS)

Supreme Court Upholds Far-Reaching Racial Discrimination Rules For Housing

By David G. Savage and Timothy M. Phelps, Tribune Washington Bureau (TNS)

WASHINGTON — The Supreme Court on Thursday upheld the broad reach of a federal law that forbids racial discrimination in housing, ruling the civil rights measure covers more than merely cases of intentional and blatant racial bias.

The 5-4 decision, with Justice Anthony Kennedy joining the court’s liberals, is a victory for civil rights advocates who said the broad application of the law is needed to combat racial segregation in American housing patterns.

The court decided that the Fair Housing Act may be used to attack zoning rules or lending policies that appear to have a discriminatory effect on blacks, Latinos or other racial minorities.

The decision is a defeat for the mortgage banking industry. Several major banks had been sued by the Obama administration for lending practices that had a discriminatory effect on racial minorities.

Kennedy’s opinion was a rare victory for civil rights advocates at the high court. Its tone at moments was not unlike something that could have come from the liberal Warren court of the 1960’s.

Kennedy pointed out that the Fair Housing Act was passed by Congress in response to the assassination of Martin Luther King Jr. in 1968 and the social unrest that followed.

“Much progress remains to be made in our nation’s continuing struggle against racial isolation,” Kennedy said, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor.

The Federal Housing Administration “must play an important part in avoiding the . . . grim prophecy that ‘(o)ur nation is moving toward two societies, one black, one white — separate and unequal,'” Kennedy wrote. “The Court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”

Justice Clarence Thomas, the court’s only African-American and a former chairman of the Equal Employment Opportunity Commission, which enforces the civil rights laws, wrote in dissent that the majority opinion was based on false assumptions.

“As best I can tell, the reason for this wholesale inversion of our law’s usual approach is the unstated — and unsubstantiated — assumption that, in the absence of discrimination, an institution’s racial makeup would mirror that of society,” Thomas wrote.

“But the absence of racial disparities in multi-ethnic societies has been the exception, not the rule.” Thomas said. “To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.”

Photo: Matt H. Wade via Wikimedia Commons

Analysis: Handwriting Is On The Wall For Supreme Court Gay Marriage Decision

By David G. Savage and Timothy M. Phelps, Tribune Washington Bureau (TNS)

WASHINGTON — The Supreme Court on Monday gave its strongest signal yet that advocates seeking the legalization of gay marriage nationwide have won even before April’s arguments.

The justices, with only two dissents, turned down a plea to delay same-sex marriages in Alabama by the state’s attorney general. The court’s action clears the way, for the first time in the Deep South, for gay couples to seek marriage licenses. A federal judge in Alabama had struck down the state’s law limiting marriage to a man and a woman.

Normally, a state might have expected the high court to block the judge’s decision from taking effect, given that the justices had agreed to rule by June on whether gays and lesbians have a constitutional right to marry.

But rather than wait for the outcome, the justices instead told Alabama state officials they must now issue marriage licenses to gay couples.

“This is further confirmation that the result in the marriage cases is a foregone conclusion,” said Cornell University law professor Michael Dorf.

In an unusual move, Justice Clarence Thomas wrote a dissent that all but admitted defeat. He said the court should have agreed to “preserve the status quo pending the court’s resolution of the constitutional question.”

“This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” he wrote in a statement joined only by Justice Antonin Scalia. “This is not the proper way to discharge our (constitutional) responsibilities. And it is indecorous for this court to pretend that it is.”

Sarah Warbelow, legal director for the Human Rights Campaign, a major gay rights group in Washington, said the Supreme Court’s refusal to stay the lower court decision was telling.

“The court is only supposed to issue a stay when the party seeking the stay can show they have a likelihood of winning,” she said. “By declining the stay, seven of the nine justices are saying that the state is unlikely to win on the merits and therefore, come June, marriage equality will be the law of the land across the entire country.”

There remains uncertainty in Alabama, however. The state’s chief justice, Roy Moore, told state probate judges they are bound by Alabama law and should ignore the federal court’s decision.

This is not the first time the nation’s high court has signaled a majority is ready to rule in favor of gay marriages.

In October, the court had before it pending appeals from five states where officials were prepared to defend their laws limiting marriage to a man and a woman. Federal appeals courts in Denver, Chicago and Richmond, Va., had struck down those laws as unconstitutional.

Lawyers on both sides assumed the high court would agree to hear the cases and rule on the constitutional issue. It took the votes of only four of the nine justices to grant the appeals. Moreover, the justices had earlier issued orders that blocked gay marriages from beginning in several of the states, including Utah.

But in a major surprise, the justices simply denied all the appeals without comment. That order had the effect of making gay marriages legal in about two-thirds of the nation.

Chief Justice John G. Roberts and Justice Samuel A. Alito Jr. had joined with their fellow conservatives Thomas and Scalia in dissenting in 2013 when the court struck down part of the federal Defense of Marriage Act. Their refusal to vote with Scalia and Thomas in October spoke loudly.

“The reality is that ever since the Supreme Court declined to take up the cases (in October) they were clearly indicating the likely outcome,” said Warbelow, from the Human Rights Campaign. “It is hard to envision a scenario where you allow same-sex couples to marry only to take that away from them.”

Brian Brown, president of the conservative National Organization for Marriage, said he was disappointed by the Supreme Court’s failure to act.

“Allowing a lower-court ruling that overturns a state marriage amendment adopted by over 80 percent of voters is reckless and undermines the integrity of the court,” Brown said. “We call on the people of Alabama to continue to enforce their state marriage laws.”

Not all the experts agreed that the court’s procedural move Monday had a larger significance about the ultimate outcome.

“The court approaches questions about stays differently than it approaches the merits,” said Neal Katyal, former acting U.S. solicitor general in the Obama administration.

Regarding Moore’s order to local officials, Katyal said, “This is an extraordinary circumstance where a state previously known for resistance to federal court orders thinks it can thumb its nose at the federal court again, and that has to be part of the dynamic.”

Other experts said one of the only remaining questions about the court’s upcoming decision is whether any of the conservatives will join the liberals.

“It seems almost inconceivable that there are not five votes now for gay marriage and I think a lot of us are wondering if the chief justice won’t be sorely tempted to be a sixth vote,” said Harvard University law professor Michael Klarman, who has written about the fight for gay marriage.

Photo: Matt H. Wade via Wikimedia Commons

Supreme Court Rules Against Obama On Recess Appointments

By David G. Savage and Timothy M. Phelps, Tribune Washington Bureau

WASHINGTON — The Supreme Court ruled Thursday that President Barack Obama exceeded his power under the Constitution by filling three federal positions when the Senate was on a brief break, but justices upheld the right of the president to make recess appointments during longer breaks.

While the president is authorized to fill vacancies while the Senate is on recess, the justices decided in a 9-0 ruling that the Senate was not on a true recess in January 2012 when Obama filled three seats on the National Labor Relations Board.

The decision is a rebuke to the president, but its short-term impact on Obama could be muted because last year the Democratic-controlled Senate scrapped a long-standing filibuster rule that had allowed the current Republican minority to block a vote on many of his nominees.
Before that change was made, Republicans effectively blocked many of Obama appointments, prompting the president to turn to recess appointments as a way to fill vacant posts.

The limited scope of the court’s ruling was criticized by Justice Antonin Scalia, who agreed with the majority but said the court should have gone much further.

Justice Anthony Kennedy and the court’s most liberal members also signed onto the opinion, written by Justice Stephen Breyer.

“A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess appointment power,” Breyer wrote.

But the court was split 5-4 on the broader question of whether the modern presidency should retain the right to make recess appointments.
Scalia, in an opinion that read more like a dissent than a concurrence, blasted the Breyer opinion from the bench, a highly unusual move.
“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Scalia wrote.

“To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.”

He was joined by fellow conservatives Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas and Samuel A. Alito Jr.

But Breyer wrote for the court that a broader reading of the recess clause “is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess — intra-session or inter-session — of sufficient length.”

He indicated that a sufficient length might be a break of 11 days.

The Senate subsequently confirmed appointments to the three posts, so the decision will not displace any officials. If Republicans succeed in taking back control of the Senate this fall, the court’s ruling could carry more weight next year.

The ruling will bind future presidents as well, limiting the chief executive’s authority to go around the Senate. In the early years of the nation, presidents used “recess” appointments because members of Congress left the capital for several months at a time.

In their absence, the chief executive could make temporary appointments to the government. In more recent times, presidents from Ronald Reagan to Barack Obama have used temporary appointment power to bypass a Senate that was slow to confirm his nominees.

This story has been updated

AFP Photo/Karen Bleier