Latest Cato Research on Constitutional Studies en Josh Blackman discusses the impeachment inquiry moving forward on NPR’s 1A Sat, 12 Dec 2020 10:47:36 -0500 Josh Blackman Ilya Shapiro discusses Trump v. Mazars USA, LLP on CBSN Thu, 09 Jul 2020 12:37:44 -0400 Ilya Shapiro Ilya Shapiro discusses Trump v. Vance on CBSN Thu, 09 Jul 2020 12:35:15 -0400 Ilya Shapiro Ilya Shapiro discusses McGirt v. Oklahoma on CBSN Thu, 09 Jul 2020 12:31:55 -0400 Ilya Shapiro Ilya Shapiro participates in the webinar, “Agency Independence, Presidential Power, and Seila Law v. CFPB,” hosted by the Committee for Justice Wed, 08 Jul 2020 12:46:48 -0400 Ilya Shapiro Seila Law v. Consumer Financial Protection Bureau Diego Zuluaga, William Yeatman, Caleb O. Brown <div class="mb-3 spacer--nomargin--last-child text-default"> <p>It wasn’t one of the blockbuster Supreme Court cases of the term, but it will shape how power is vested in federal agencies. Cato’s Diego Zuluaga and Will Yeatman comment on <em>Seila Law v. CFPB</em>.</p> </div> Mon, 06 Jul 2020 15:45:47 -0400 Diego Zuluaga, William Yeatman, Caleb O. Brown United States v. Safehouse Trevor Burrus, Clark Neily, Ezekiel R. Edwards, Mary Catherine Roper <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p><a href="" target="_blank">Safehouse</a>&nbsp;is a&nbsp;nonprofit public‐​health organization that seeks to mitigate the harms of the opioid crisis in many ways. First and foremost, Safehouse wants to provide a&nbsp;supervised injection site (SIS) for compulsive opioid users. SISs do not provide any drugs to users but offer a&nbsp;place where the drugs can be tested and medical professionals are available in the event of an overdose. In addition, Safehouse will offer counseling and recovery treatment.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>SIS model has been used with great success elsewhere, especially in Vancouver’s Downtown Eastside, which was an epicenter of overdoses before&nbsp;<a href="" target="_blank">Insite</a>&nbsp;opened in 2003. Despite those successes, the federal government is trying to block Safehouse by invoking a&nbsp;1980s crack‐​house law that makes it a&nbsp;crime to provide a&nbsp;place to take illicit drugs, even without compensation. Safehouse won the first round when a&nbsp;federal district court ruled that the Department of Justice couldn’t stretch the crack‐​house statute to cover Safehouse’s lifesaving SIS.</p> <p>Now on appeal to the Third Circuit, Cato has joined with the ACLU and the ACLU of Pennsylvania on a&nbsp;brief supporting Safehouse. We argue that the Constitution’s federal structure was designed to allow for states to experiment with different policies, especially when it comes to protecting the health and welfare of citizens. No one knows how to solve the opioid crisis, and it is bad form, at the very least, for the federal government to try to block SISs with a&nbsp;30‐​year‐​old law that was passed during the height of the War on Drugs. The idea that prohibition and arrests is the best way to solve the opioid crisis should be left in the past.</p> <p>Moreover, the federal government is largely responsible for the current overdose crisis. Over the past decade, the synthetic opioid fentanyl has become the biggest source of overdoses, with over 31,000 dying in 2018. Fentanyl is 50 to 100 times stronger than heroin, and the lethal dose is 2&nbsp;or 3&nbsp;milligrams, which is equivalent to about 4&nbsp;grains of salt. Compulsive heroin users are increasingly finding fentanyl in their heroin, often unknowingly. They shoot up the same amount as usual, and they die.</p> <p>Why is such a&nbsp;deadly drug polluting the drug supply? Because of the “iron law of prohibition.” When college kids sneak alcohol into a&nbsp;football game, they don’t sneak beer, they prefer the more compact and potent stuff. Similarly, during alcohol Prohibition, beer and wine essentially disappeared and were replaced by hard spirits. For the same reasons, drug traffickers prefer high‐​potency opioids like fentanyl even when the users are not demanding it.</p> <p>Finally, we argue that the DOJ’s attempt to apply the crack‐​house law to Safehouse’s SIS is an unconstitutional extension of the Commerce and Necessary and Proper Clauses. Under the government’s argument, parents that let their son shoot up in the bathroom so they can monitor him would be violating the same statute. Yet the Commerce and Necessary and Proper Clauses do not let Congress regulate intrastate, noneconomic activity such as this. While Congress has broad power under current precedents, it doesn’t have the power to control everything that happens around illicit drugs.</p> <p>The Third Circuit should stop the federal government’s cruel and counterproductive attempt to block an institution that will undoubtedly save lives.</p> </div> Mon, 06 Jul 2020 15:27:33 -0400 Trevor Burrus, Clark Neily, Ezekiel R. Edwards, Mary Catherine Roper Colorado Acts on Police Accountability While Congress Dithers Leslie Herod, Caleb O. Brown <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Congress has yet to make clear changes of policy with respect to police brutality, but Colorado has moved in a&nbsp;big way. Leslie Herod is a&nbsp;Democratic state representative in Colorado. Her proposals to reform use of force and liability for police officers is now law in Colorado. She describes how states can replicate Colorado’s efforts to hold police accountable to the public.</p> <ul><li><a href="">More from Cato on qualified immunity</a></li> </ul> </div> Sat, 04 Jul 2020 02:00:00 -0400 Leslie Herod, Caleb O. Brown Why Is Florida Still Pushing Prostitution Charges for Robert Kraft? Elizabeth Nolan Brown, Caleb O. Brown <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The owner of the New England Patriots is pushing a&nbsp;strong defense against solicitation charges filed against him, and what first looked like a&nbsp;big win for prosecutors against a&nbsp;high‐​profile defendant is now looking more like a&nbsp;major headache. Elizabeth Nolan Brown of <em>Reason</em> says that the Robert Kraft case should highlight what happens to people charged with victimless crimes who don’t happen to be fabulously wealthy.</p> </div> Fri, 03 Jul 2020 02:00:00 -0400 Elizabeth Nolan Brown, Caleb O. Brown School Choice, Religious Freedom at the Supreme Court Ilya Shapiro, Neal McCluskey, Caleb O. Brown <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The Supreme Court has dealt a&nbsp;blow to private school choice programs that exclude parents who would send their children to religious school. Cato’s Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies, and Neal McCluskey, director of the Center for Educational Freedom, comment.</p> </div> Tue, 30 Jun 2020 14:55:18 -0400 Ilya Shapiro, Neal McCluskey, Caleb O. Brown Remarkably Easy School Choice Case Was Still Only a 5–4 Decision Ilya Shapiro <p>Neal McCluskey has <a href="">already commented</a> on the policy ramifications of today’s important educational/​religious freedom Supreme Court decision, but I&nbsp;wanted to pick up on the key legal point.</p> <p><a href=""><em>Espinoza v. Montana Department of Revenue</em></a> was a&nbsp;simple case that exposed blatant anti‐​religious discrimination: Montana created a&nbsp;tax‐​credit scholarship program, which state authorities didn’t allow religious parents to take advantage of, and which the state supreme court shuttered rather than allowing those parents to send their kids to religious schools.</p> <p>Our Constitution simply doesn’t permit that sort of thing.</p> <p>What’s scary is that this easy call became a&nbsp;5–4 vote. That’s the margin on which freedom of conscience rests in this country, at least with respect to government action. It shows why various states’ nefarious Blaine Amendments are a&nbsp;blot on our liberties, and why school choice is more important than ever.</p> <p><a href="">See here</a> for more background&nbsp;and to read <a href="">Cato’s brief</a>, which Justice Alito cited on the second page of his concurring opinion.</p> Tue, 30 Jun 2020 11:48:11 -0400 Ilya Shapiro Seila Law Doesn’t Add Up William Yeatman <p>In <em><a href="">Seila Law, LLC v. Consumer Financial Protection Bureau</a></em>, the Supreme Court today held that the CFPB’s design violates the Constitution because it concentrates&nbsp;too much power in the hands of one person.</p> <p>The Court’s remedy, alas, was to concentrate power in the hands of a&nbsp;different person.</p> <p>Let’s unpack this curious result (<a href="">background &amp;&nbsp;Cato brief</a>).</p> <p>A decade ago, in response to the last financial crisis, Congress transferred 18 regulatory programs to the newly created CFPB. Thus empowered, the agency enjoys sweeping authority to enforce the rules it writes.</p> <p>To insulate the CFPB from politics on Capitol Hill, Congress exempted the agency from the normal appropriations process. Instead, the CFPB is funded directly by the Federal Reserve, and Congress is left out of the loop.</p> <p>To shield the CFPB from presidential politics, Congress made it an “independent” agency, which means simply that the CFPB’s leadership can disagree with the president (on policy) without fear of being fired.</p> <p>Almost always, such “independent” agencies are multi‐​member and bipartisan commissions. For the CFPB, however, Congress placed a&nbsp;single director in charge.</p> <p>Taken individually, none of the CFPB’s&nbsp;characteristics&nbsp;are unprecedented. Plenty of agencies exercise sweeping authority. A&nbsp;couple&nbsp;may bypass the appropriations process. Many are “independent” agencies.&nbsp;And a&nbsp;handful are run by a&nbsp;single director.</p> <p>The CFPB is special because it was the first agency to incorporate <em>all&nbsp;</em>the above&nbsp;qualities.</p> <p>The primary question before the <em>Seila Law</em> Court was whether the CFPB’s unique structure violated the Constitution. A&nbsp;bare majority of Justices answered in the affirmative.</p> <p>According to Chief Justice Roberts’s opinion, the CFPB “lacks a&nbsp;foundation in historical practice and clashes with constitutional structure by concentrating power in a&nbsp;unilateral actor.” The agency is, therefore, “incompatible” with the separation of powers.</p> <p>So far, so good: The CFPB’s structure is unconstitutional.</p> <p>The <em>Seila Law</em> opinion then turns to how the Court should remedy this constitutional violation. This is where the opinion&nbsp;leaps off the rails.</p> <p>According to seven Justices, the “solution” to the CFPB’s unconstitutional structure is simply to remove the agency’s&nbsp;“independent” status. In practice, this means that the president may fire the CFPB’s director “at will.” The problem is that the Court’s remedy fails to diminish the constitutional harm as set forth by the holding.</p> <p>On the merits, the Court determined that the CFPB’s design was&nbsp;unconstitutional for two main reasons. First,&nbsp;the agency represented an historical anomaly. Second, Congress&nbsp;vested&nbsp;too much unaccountable power in one person.</p> <p>Well, under the terms of the Court’s remedy, the CFPB remains an historical anomaly that concentrates too much unaccountable power in one person.</p> <p>To my knowledge,&nbsp;no other executive agencies (i.e., non‐​independent)&nbsp;are spared from Congress’s&nbsp;power of the purse. If I’m right, then the CFPB currently is no less unprecedented than it was before the Court’s decision today.</p> <p>Moreover, the agency still reflects a&nbsp;constitutionally dubious consolidation of power, albeit now amassed&nbsp;in the president instead of the CFPB director. When it comes to the CFPB—a regulatory powerhouse—the president doesn’t have to haggle with lawmakers to get funding for his&nbsp;priorities. No more pesky oversight from appropriators!&nbsp;</p> <p>In sum, the Court’s opinion is a&nbsp;house divided. The Court rightly struck down the CFPB’s design as unconstitutional. But the Court’s remedy has the perverse effect of perpetuating the underlying&nbsp;harms. Had it followed its&nbsp;(correct) constitutional reasoning to the&nbsp;logical end, the Court&nbsp;would have sent the entire regime back to Congress.&nbsp;</p> <p>Only Congress can clean up this mess.&nbsp;At the very least, lawmakers should normalize the CFPB’s budget process.</p> Mon, 29 Jun 2020 15:38:02 -0400 William Yeatman John Roberts Outsmarts Himself Yet Again Ilya Shapiro <p>It was a&nbsp;big day at the Supreme Court. While my colleagues comment on <a href=""><em>AID v. AOSI</em></a>—an interesting case about the application of the First Amendment to the foreign affiliates of American organizations (<a href="">background and Cato’s brief</a>)—and <a href=""><em>Seila Law v. CFPB</em></a>—on the constitutionality of the single‐​director head of an independent agency (<a href="">background and Cato’s brief</a>), I&nbsp;want to comment on the one case decided today in which Cato didn’t file.</p> <p><a href=""><em>June Medical Services v. Russo</em></a> considered a&nbsp;Louisiana regulation requiring doctors who perform abortions to have admitting privileges at a&nbsp;hospital within 30&nbsp;miles of their abortion clinic. Notably, the state law at issue here was similar to a&nbsp;Texas one that the Supreme Court invalidated in <em>Whole Women’s Health v. Hellerstedt </em>(2016). That case was decided on a&nbsp;5–3 vote after Justice Scalia’s death, with Justice Anthony Kennedy joining the liberals and Chief Justice John Roberts joining Justices Samuel Alito and Clarence Thomas in dissent.</p> <p>Cato scholars don’t generally take positions on abortion because libertarians in good faith run the gamut from pro‐​life to pro‐​choice. And we’ve never filed a&nbsp;brief in an abortion case, for that reason but also because the operative legal standard from <em>Planned Parenthood v. Casey </em>(1992), which prohibits regulations that pose an “undue burden” on abortion rights, is inscrutable—possibly the most subjective, political aspect of constitutional jurisprudence. The joke used to be that an “undue burden” was something that gave swing vote Justice Kennedy a&nbsp;headache.</p> <p>I’m not going to buck that trend now, other than to comment on the odd result of Chief Justice Roberts’s having joined the liberals’ invalidation of the Louisiana law while joining them in the judgment alone on <em>stare decisis </em>grounds. That is, Roberts maintained his disagreement with the holding of <em>Whole Women</em>’s<em> Health</em>, and in a&nbsp;vacuum would’ve upheld the law now, but nevertheless voted against the state in order to respect that earlier precedent—which, again, he considers to be erroneous.</p> <p>But, setting aside the constitutional merits of the Louisiana law and how close it is to the Texas one that the Court invalidated four years ago, Chief Justice Roberts’s capricious application of <em>stare decisis</em> is startling. After all, <em>stare decisis</em> didn’t stop him from overturning precedent in <em>Citizens United v. FEC </em>(2010), <em>Janus v. AFSCME </em>(2018), and <em>Knick v. Township of Scott </em>(2019), cases in which the precedent was much older and more entrenched, but a&nbsp;very recent close decision <em>in which he dissented</em> apparently carries more weight. There are probably other examples, but those three come immediately to mind.</p> <p>Mind you, I&nbsp;think Roberts was correct in all those earlier cases, and his concurring exposition of <em>stare decisis</em> in <em>Citizens United</em> was well done. But that doesn’t jibe with what he wrote today or, for that matter, with his vote in <em>Gonzales v. Carhart </em>(2007), which upheld the federal ban on partial‐​birth abortion a&nbsp;mere seven years after the Court invalidated a&nbsp;similar Nebraska ban in <em>Stenberg v. Carhart</em> (2000).</p> <p>Again, I’m not taking any position here on the merits of the Louisiana law at issue in <em>June Medical</em>, let alone on the viability of <em>Casey </em>and <em>Roe v. Wade </em>(1973), but I’m appalled by this latest example of the chief justice’s unprincipled decision making. Presumably he did what he did to preserve the Court’s legitimacy and extricate it as much as possible from the political debate, especially in an election year. As in every other case where he has done this, however, going back to <em>NFIB v. Sebelius</em> (2012), the Obamacare case, my view is that he has failed on his own terms.</p> <p>John Roberts ought to stop playing “87‐​dimensional chess” and just call the legal balls and strikes, as he promised to do at his confirmation hearings.</p> Mon, 29 Jun 2020 12:44:57 -0400 Ilya Shapiro Roger Pilon discusses the DC statehood vote on PBS NewsHour Fri, 26 Jun 2020 11:58:46 -0400 Roger Pilon Roger Pilon discusses the DC statehood vote on Hearst Television Fri, 26 Jun 2020 11:22:14 -0400 Roger Pilon RSC’s FTO AUMF: LOL! Gene Healy <p>In these increasingly grim Days of Rage and COVID, you have to take your laughs where you can find them, sometimes from unusual sources. It has come to my attention that the Republican Study Committee—the nearly 150‐​strong caucus of House conservatives—<a href="">recently released</a> a comprehensive national security strategy entitled, <a href="">“Strengthening America &amp; Countering Global Threats.”</a> The “product of over 1.5 years of policy development,” this 120‐​page manifesto is “a conservative, solutions‐​oriented plan” that “advances the interests of the American people at home and abroad,” <a href="">according to</a> RSC Chairman Rep. Mike Johnson (R.-LA) and Rep. Joe Wilson (R.-SC). </p> <figure role="group" class="align-right filter-caption"><div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="bbdf83d8-532f-43c5-88cc-f808b2e64643" data-langcode="en" class="embedded-entity"> <img srcset="/sites/ 1x, /sites/ 1.5x" width="700" height="394" src="/sites/" alt="Emphasis on “Global”" typeof="Image" class="component-image" /></div> <br /><figcaption><div class="figure-caption text-sans-alternate">Have they got a solution for you! </div> </figcaption></figure><p>One of those purported solutions involves constitutional war powers. The RSC report acknowledges that the congressional resolutions the president currently relies upon to wage war—the 2001 and 2002 authorizations for the use of military force (AUMFs)—are “outdated,” have been “stretched,” and therefore “some conservatives may be concerned with increasingly degraded congressional war powers.” What’s needed, the RSC says, is a new AUMF “giving the President sufficient authority to go after terrorist organizations for a definitive length of time without granting vague and indefinite war powers.” But what the House GOP brain trust has come up with would empower the president to wage war in, among other places, Peru, Sri Lanka, Japan, Spain, and—why not?—Northern Ireland. In (God help me) <a href="">nearly two decades</a> of following the war powers issue, it’s the most ridiculous proposal I’ve ever seen.</p> <p>Here’s the RSC’s bright idea: replacing the 2001 and 2002 resolutions with “an AUMF that authorizes the President to engage in operations against any currently designated Foreign Terrorist Organization (FTO) that is on the Department of State’s list at the time of enactment.” Granted, it would be nice to have a fixed, public list of terrorist organizations Congress has empowered the president to target. What we’ve got instead is <a href="">runaway mission creep</a>, as successive presidents have expanded the war on terror to new theaters and new jihadist groups under the rubric of “[Al Qaeda‐] associated forces.” Along the way, they’ve been <a href="">extraordinarily cagey</a> about which groups we’re at war with and which ones we might target next. As a result, nearly two decades after 9/11, the U.S. is engaged in combat operations in <a href="">some 14 countries</a>, bombing half a dozen of them on a semi‐​regular basis.</p> <p>And, true enough, the State Department has a list of Foreign Terrorist Organizations that it’s maintained since the late ‘90s, following criteria outlined in the Antiterrorism and Effective Death Penalty Act of 1996. You can take a look at the FTO list <a href="">here</a>. It includes <em>some 67 groups in 30 countries</em>.</p> <p>Did anybody at the RSC look at the list? Somebody involved in drafting this batty proposal visited the State Department’s FTO site at least once: the URL’s right there in footnote #369. But apparently, no one bothered to, er, <em>study</em> the page long enough to wonder: does the president really need standing authority to launch airstrikes and kill‐​or‐​capture missions against, say, the <a href="">Liberation Tigers of Tamil Elam</a> (Sri Lanka), the <a href="">Revolutionary Armed Forces of Colombia</a>, the <a href="">Real Irish Republican Army</a>, the <a href="">Continuity IRA</a> (<a href="">splitters</a>!), the ragtag band of Greek Marxists who go by the name <a href="">“Revolutionary Struggle”</a>—and umpteen other groups that pose no significant threat to the United States?</p> <p>A bunch of these sects are yesterday’s news: the Japanese terror‐​cult Aum Shinrikyo “has not conducted a terrorist attack since 1995,” per State’s <a href="">last available report</a>, and Japan executed seven of its leaders two years ago. The Basque separatist group Fatherland and Liberty, responsible for killing over 800 people in Spain and France over its 50‐​year history, ceased active operations in 2011 and <a href="">formally disbanded in 2018</a>. There’s a delisting process through which inactive groups can be removed, but it clearly hasn’t kept pace with current events in the terror community.</p> <p>That’s probably because the FTO roster wasn’t compiled with military targeting in mind. It’s mainly used to restrict terrorist financing, prevent admission of FTO members to the U.S. and to show diplomatic solidarity with allies facing their own extremist threats. It was never supposed to be a kill list.</p> <p>No doubt, your average RSC member is more hawkish than the <a href="">small cadre</a> of antiwar Republicans in the House. But surely none of the members who <a href="">signed onto this document</a> loves war so much that they’re completely indifferent to where, why, and with whom it’s waged. Instead, it seems nobody involved in crafting this proposal gave much thought to how it would work and what it would do. Clearly, the intellectually lazy, dog‐​ate‐​my‐​homework approach to public policy didn’t start with Donald J. Trump and it won’t end with him.</p> Thu, 25 Jun 2020 14:30:25 -0400 Gene Healy Roger Pilon discusses DC Statehood on Newsy Tue, 23 Jun 2020 10:57:38 -0400 Roger Pilon This Is Your Constitution on Drugs Tue, 23 Jun 2020 08:17:27 -0400 Ilya Shapiro The Unresolved Separation of Powers Questions in the DACA Case Josh Blackman <p>I previously blogged about the administrative law issues in the DACA case (<a href="">here</a> and <a href="">here</a>), as well as the <a href="">equal protection</a> issues. Here, I will talk about the unresolved separation of powers issues underlying DACA. Justice Thomas addressed this issues in his dissent, which was joined by Justices Alito and Gorsuch, but not Justice Kavanaugh. Thomas's dissent echoed the Cato Institute's <a href="">amicus brief</a> with respect to the Non-Delegation Doctrine, the Major Question Doctrine, an "Adverse Possession" theory of Executive Power, and the Take Care Clause.</p> <h2>The Non-Delegation Doctrine</h2> <p><strong>First</strong>, Justice Thomas addressed the non-delegation doctrine. If Congress had in fact given DHS the authority to implement DACA, then federal immigration laws would violate the non-delegation doctrine.</p> <blockquote><p>In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. See <em>Department of Transportation</em> v. <em>Association of American Railroads</em>, 575 U. S. 43, 77 (2015) (THOMAS, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a "surrogate political process" that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process.</p> </blockquote> <p>We offered a similar conclusion in our <em>amicus </em>brief:</p> <blockquote><p>If the previous administration's boundless reading of immigration law was correct, Congress would have unconstitutionally delegated legislative authority to the executive branch. Indeed, leading immigration scholars—whom the government cited—endorse such an expansive conception of statutory delegation.</p> </blockquote> <h2>The Major Question Doctrine</h2> <p>Thomas discussed the non-delegation doctrine after considering the closely-related major question doctrine. Specifically, the broad definitional statutes should not be read to confer such vast authority: 6 U.S.C. § 1103(a)(3) and 6 U.S.C. § 202(5).</p> <blockquote><p>Finally, DHS could not appeal to general grants of authority, such as the Secretary's ability to "perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter," <strong>§ 1103(a)(3),</strong> or to "[e]stablis[h] national immigration enforcement policies and priorities," 6 U. S. C. § 202(5).</p> </blockquote> <p>Cato flagged both of these statutes:</p> <blockquote><p>In short, the case for DACA's statutory legality hangs on only two provisions of the U.S. Code: 6 U.S.C. § 202(5) and 8 U.S.C § 1103(a). Can the authority for DACA be found within the four corners of these statutes? No.</p> </blockquote> <p>Thomas wrote these statutes cannot confer such vast authority.</p> <blockquote><p>Basing the Secretary's ability to completely overhaul immigration law on these general grants of authority would <strong>eviscerate that deliberate statutory</strong> scheme by "allow[ing the Secretary of DHS] to grant lawful presence … to any illegal alien in the United States." Not only is this "an untenable position in light of the INA's intricate system," but it would also render many of those provisions wholly superfluous due to DHS' authority to disregard them at will. <em>Duncan</em> v. <em>Walker</em> (2001).</p> </blockquote> <p>Next, Thomas brings in <em>Whitman </em>and <em>UARG</em>, canonical major question cases:</p> <blockquote><p>And in addition to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of the presumption that "Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions." <em>Whitman</em> v. <em>American Trucking Assns.</em>,<em> Inc.</em> (2001). And it would also conflict with the<strong> major questions doctrine</strong>, which is based on the expectation that Congress speaks clearly when it delegates the power to make "decisions of vast economic and political significance." <em>Utility Air Regulatory Group </em>v.<em> EPA</em> (2014) (<em>UARG</em>). … The immigration statutes contain a level of granular specificity that is exceedingly rare in the modern administrative state. It defies all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defined as "alien entrepreneurs," is simultaneously capacious enough for DHS to grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary's pen.</p> </blockquote> <p>And once again, Cato sounded a similar note:</p> <blockquote><p>Second, the attorney general's analysis echoed an-other important attribute of modern nondelegation doctrine: the provision of work authorization to 1.5 million aliens was a major question of "deep 'economic and political significance' that is central to this statutory scheme." <em>King v. Burwell</em>, 135 S. Ct. at 2489 (quoting <em>UARG</em>, 573 U.S. at 324)). Indeed, the attorney general stressed that DACA sidestepped Congress "after Congress' repeated rejection of proposed legislation that would have accomplished a similar result."</p> </blockquote> <h2>Adverse Possession Theory of Executive Power</h2> <p><strong>Second</strong>, defenders of DACA argued that past practice supports the legality of the deferred action policy. Justice Thomas emphatically rejects this argument in Footnote 6:</p> <blockquote><p>FN6: In the DAPA litigation, DHS noted that some deferred-action programs have been implemented by the Executive Branch without explicit legislation. <strong>But "'past practice does not, by itself, create [executive] power.'" <em>Medellín</em> v. <em>Texas</em> (2008) (quoting <em>Dames &amp; Moore</em> v. <em>Regan</em> (1981)).</strong> If any of these programs had been challenged, it would seem that they would be legally infirm for the same reasons as DACA.</p> </blockquote> <p>Cato also rejected this "adverse possession" argument, with a citation to Medellin.</p> <blockquote><p>The Court has, at times, endorsed this sort of "<strong>adverse possession</strong>" approach to the separation of powers. <em>NLRB v. Noel Canning</em>, 573 U.S. 513, 526 (2014) (quoting <em>Youngstown Sheet &amp; Tube Co. v. Sawyer</em>, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring); <em>id. </em>at 613 (Scalia, J., concurring). That is, the president can accumulate <em>new </em>constitutional powers "by engaging in a consistent and unchallenged practice over a long period of time." <em>Id. </em>at 613–14. <em>But see Medellin v. Texas</em>, 552 U.S. 491, 532 (2008) (quoting <em>Dames &amp; Moore v. Regan</em>, 453 U.S. 654, 686 (1981)) ("Past prac-tice does not, by itself, create power.")<em>; </em>Josh Blackman, <em>Defiance and Surrender</em>, 59 S. Tex. L. Rev. 157, 164 (2018) (noting that "courts favor purported defiance over voluntary surrender") (citing <em>McPherson v. Blacker</em>, 146 U.S. 1, 35–36 (1892)).</p> </blockquote> <p>Thomas could have picked up our alternate argument. Medellin and related cases only concerned <em>constitutional </em>power. The DACA case considered an aggrandizement of <em>statutory </em>power.</p> <blockquote><p><strong>But the Court has never sanctioned the extension of a Frankfurterian gloss to the statutory context.</strong> The president cannot accrete new legislation-based powers because Congress has acquiesced to similar accretions in the past. The legality of DACA must stand or fall by virtue of the authority delegated by 6 U.S.C. § 202(5) and 8 U.S.C § 1103(a), <em>not </em>based on whether Congress has acquiesced to past invocations of those authorities.</p> </blockquote> <p>I had not seen this argument made before. It should be used.</p> <h2>The Take Care Clause</h2> <p>The majority opinion seems to countenance a remedy in which the court can require the agencies to continue enforcing a policy, even if it is illegal.</p> <blockquote><p><strong>No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void <em>ab initio</em>.</strong> Cf. <em>Clinton</em> v. <em>City of New York</em> (1998); <em>INS</em> v. <em>Chadha</em> (1983). In reviewing agency action, our role is to ensure that Executive Branch officials do not transgress the proper bounds of their authority, <em>Arlington</em> (ROBERTS, C. J., dissenting), <strong>not to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute's clear limits</strong>.</p> <p>Under our precedents, DHS can only exercise the authority that Congress has chosen to delegate to it. In implementing DACA, DHS under the Obama administration arrogated to itself power it was not given by Congress. <strong>Thus, every action taken by DHS under DACA is the unlawful exercise of power</strong>. Now, under the Trump administration, DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it carried the program forward.</p> </blockquote> <p>The majority would probably counter that if the agency does not comply with the APA, the APA would <em>require </em>the agency to continue enforcing a policy, even if it is illegal. Our Cato brief anticipated this argument. We grounded our response in the Take Care Clause. The APA would be unconstitutional, as applied, if it forced the executive branch to continue enforcing an illegal policy. No statute can require the President to stand by idly while his subordinate violate the law.</p> <blockquote><p><strong>Likewise, the executive branch does not need the judiciary's permission to cease enforcing a regulation it determines to be unconstitutional. Indeed, the APA would be unconstitutional, as applied, whenever its regulatory manacles required the executive to continue enforcing an unconstitutional policy.</strong></p> <p>Here, the attorney general determined that DACA had "constitutional defects," in light of the Fifth Circuit's decision in <em>Texas v. U.S</em>, and the major questions doctrine. The Court should defer to this reasonable interpretation of the president's duty to faithfully exe-cute the law because it avoids nondelegation problems. In other words, courts should allow reversals of novel execution actions that expand presidential power.</p> </blockquote> <p>We are grateful that at least three of the Justices considered these important separation of powers issues.</p> <p>[<a href="">Cross-posted from The Volokh Conspiracy</a>]</p> <p></p> Mon, 22 Jun 2020 08:35:20 -0400 Josh Blackman Ilya Shapiro’s comments on the Department of Homeland Security v. Regents of the University of California ruling is cited on KTLK Radio Sun, 21 Jun 2020 12:02:58 -0400 Ilya Shapiro Ilya Shapiro discusses Department of Homeland Security v. Regents of the University of California on WTTG’s FOX 5 on the Hill Sun, 21 Jun 2020 11:52:30 -0400 Ilya Shapiro Ilya Shapiro discusses Department of Homeland Security v. Regents of the University of California on WBAL’s The Andrew Langer Show Sat, 20 Jun 2020 11:50:36 -0400 Ilya Shapiro Josh Blackman discusses Department of Homeland Security v. Regents of the University of California on CTV News Weekend Sat, 20 Jun 2020 11:46:26 -0400 Josh Blackman Gonzalez v. Immigration and Customs Enforcement Brook Dooley, Andrew S. Bruns, Ilya Shapiro, David J. Bier <div class="mb-3 spacer--nomargin--last-child text-default"> <p>In the last decade and a&nbsp;half, Immigration and Customs Enforcement (ICE) has issued millions of “detainers,” requesting that state or local governments arrest and detain people that ICE is accusing of civil immigration infractions to provide ICE more time to come and assume custody of them. ICE agents assert that probable cause exists to arrest these people, but in many cases, they base their finding on nothing more than outdated and incomplete database checks.</p> <p>The U.S. Court of Appeals for the Ninth Circuit will decide an appeal of a&nbsp;district court ruling that found that this practice of issuing detainers based solely on government databases violates the Fourth Amendment. To inform the court’s review, the Cato Institute filed an amicus brief providing evidence that ICE regularly issues detainers asserting that there is probable cause to arrest people for immigration violations who, in fact, are U.S. citizens.</p> <p>According to ICE’s own records, it targeted 3,158 U.S. citizens from October 2002 to September 2019. But this figure dramatically undercounts the number of U.S. citizen targets because, among other things, ICE and immigration courts often fail to accurately update citizenship records after someone proves their citizenship status. Research by Cato and others across the country shows that ICE targets significantly higher numbers of U.S. citizens. For instance, roughly 1% of all detainers issued in Travis County, Texas were issued for U.S. citizens from October 2005 to August 2017. Extrapolated nationwide, that would translate to nearly 20,000 detainers targeting U.S. citizens during the same period.</p> <p>The quantitative evidence overwhelmingly indicates that the U.S. government is regularly issuing immigration detainers for U.S. citizens. The qualitative evidence—the stories of Americans detained or even deported by ICE—provides a&nbsp;glimpse of the way these errors occur and the human toll they take on the Americans harmed by them. These individual cases highlight the devastating consequences—legal, social, and economic—suffered by U.S. citizens targeted by detainers and the difficulties they often face in vindicating their claims of citizenship. Additional safeguards are necessary to prevent more Americans from suffering a&nbsp;similar fate.</p> </div> Fri, 12 Jun 2020 16:56:26 -0400 Brook Dooley, Andrew S. Bruns, Ilya Shapiro, David J. Bier Ilya Shapiro discusses the tearing down of confederate statues on Univision’s Noticiero Thu, 11 Jun 2020 10:55:47 -0400 Ilya Shapiro