Preliminary Injunction Against DAPA – USDC SD TX

Posted on February 17, 2015 by markinaustin
https://www.documentcloud.org/documents/1668178-179122563094.html
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Some excerpts from the 123 bloody paged opinion:
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This case examines complex issues relating to immigration which necessarily involve questions of federalism, separation of powers, and the ability and advisability, if any, of the Judiciary to hear and resolve such a dispute.
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Regardless of the fact that the Executive Branch has made public statements to the contrary, there are no executive orders or other presidential proclamations or communique that exist regarding DAPA. The DAPA Memorandum issued by Secretary Johnson is the focus in this suit.
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Secretary Johnson supported the implementation of DAPA with two main justifications.  …limited resources …humanitarian concerns.
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As Defendants concede, a direct and genuine injury to a State?s own proprietary interests may give rise to standing. Doc. No. 38 at 23; see also, e. g, Clinton v. City of N. Y., 524 US. 417, 430-31 (1998) (negative effects on the borrowing power, financial strength, and fiscal planning of a government entity are sufficient injuries to establish standing); Sch. Dist. of City of Pontiac, 584 F.3d 253, 261 (6th Cir. 2009) (school districts had standing based on their allegation that they must spend state and local funds to comply with federal law). Defendants in this case argue, however, that the projected costs to Plaintiffs drivers license programs are self-inflicted because the DHS Directive does not directly require states to provide any state benefits to deferred action recipients, and because states can adjust their benefit programs to avoid incurring these costs. Doc. No. 38 at 21-22. This assertion,
however, evaluates the DHS Directive in a vacuum. Further, this claim is, at best, disingenuous.  Although the terms of DAPA do not compel states to provide any benefits to deferred action recipients, it is clear that the DHS Directive will nonetheless affect state programs. Specifically,
in the wake of the Ninth Circuit’s decision in Arizona Dream Act Coalition v. Brewer, it is apparent that the federal government will compel compliance by all states regarding the issuance of drivers licenses to recipients of deferred action. 757 F.3d 1053 (9th Cir. 2014).
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Also, it is not a defense to the Plaintiffs’ assertion of standing to argue that it is not the DAPA program causing the harm, but rather the Justice Department’s enforcement of the program.
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…standing under Massachusetts v. E.P.A….
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If the Court were to grant the requested relief, it would not change the presence of these individuals in this country, nor would it relieve the States of their obligations to pay for any associated costs. Thus, an injunction against DAPA would not redress the damages described above.
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Three important factors separate those cases from the present one…Because of this announced policy of non-enforcement, the Plaintiffs’ claims are completely different from those based on mere ineffective enforcement. This
is abdication by any meaningful measure…Conversely, in the present case, Texas has shown that it will suffer millions of dollars in direct damages caused by the implementation of DAPA…Finally, … the above-cited cases pre-date the REAL ID Act of 2005.
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To establish the second element necessary for abdication standing, the States assert that the Government has abandoned its duty to enforce the law. This assertion cannot be disputed…standing under a theory of abdication requires only that the Government declines to enforce the law. Here, it has.
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… it is clear that Plaintiffs satisfy the standing requirements as prescribed by the APA.
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Having concluded that at least one Plaintiff, the State of Texas, has standing, the Court now addresses the merits of the States’ claims regarding the DAPA program.
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Absent abdication, decisions to not take enforcement action are rarely reviewable under the APA.
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As there is no statute that authorizes the DHS to implement the DAPA program, there is certainly no statute that precludes judicial review under Section 701(a).
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the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as “non~enforcement”, it is actually affirmative action rather than inaction.  …the very statutes under which Defendants claim discretionary authority actually compel the opposite result. In particular, detailed and mandatory commands within the INA provisions applicable to Defendants’ action in this case circumscribe discretion.
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After 123 pages of discussing “standing” under 3 theories and reviewability under APA, the trial court granted the Preliminary Injunction.
I do wonder about the discretion – abdication distinction.  I also wonder if a “non-enforcement” directive so sweeping and so rigidly constructed can avoid the strictures of APA.  I initially thought that DAPA and DACA before it were within the limits of executive authority and I still do as a constitutional matter, in a vacuum,  but as an Administrative Procedure Act violation, I can see this as an overreach based on the facts as recited in the Opinion.  Scott has pointed to the theory of abdication without calling it that, and I had not realized how iron bound the denial of individual discretion in DAPA was until I read all the footnotes in this case.  JNC – if you wade through the 123 pages I think you will be struck by the court’s stream of consciousness attempt to address the matter[s].

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Why should my vote count more than yours?

Posted on October 23, 2012 by Fairlington Blade

We’re two weeks away from the election, which looks like it’s going to be a nail biter. Most of you, though, needn’t bother to vote. Mark is free to make a statement with his vote, because Texas is deep red. For the time being. A California Republican is useful as an ATM, but not much more. As a resident of Virginia, my vote is being heavily courted.

The electoral college is the appendix of our constitution, prone to getting infected from time to time. As I love irony, I was hoping for Kerry to win Ohio in 2004 so that Bush would lose the presidency while winning the popular vote. Right now, Nate Silver has a 6% chance of Obama winning the election while getting fewer votes than Romney. There’s a 2% chance of the converse result. That puts the total odds at about one in twelve.

My modest suggestion would be to reform, but not eliminate, the electoral college. As every congressional district is electing a representative, one can also tally presidential votes by district. Winner of a state’s popular vote gets the bonus two electoral votes. Nebraska does it this way; I think one other state does as well. Maine, perhaps? DC gets a number of delegates that reflect its population, rounded up to an even number to eliminate the possibility of a tie. We keep the pomp and circumstance of the electoral college, but effectively it’s a popular vote.

The bonus being that certain states don’t get lavish attention. I’m not worried about all the political ads. With Virginia being a deciding state for president and senator, we get a truckload of them. I wouldn’t be surprised to find that Ohio has done very well in terms of federal contracts by being the swingiest of swing states.

As long as I’m proposing a significant change to elections, I would also suggest changing the terms of House members from 2 years to 4 years and having the entire House elected with the president. Or half and half if you’re into mid-terms. It’s interesting that the House has flipped only in mid-terms in my lifetime.

Well, I’m off to my bike. C’ya.

BB

Filed under: 2013 and beyond, democracy, states' rights | Tagged: | 12 Comments »

Secession revisited

Posted on April 18, 2012 by ScottC

Last week was the 151st anniversary of the beginning of the Civil War, and yesterday was the 151st anniversary of Virginia’s declaration of secession from the United States. The outcome of the Civil War itself seems to have put an end to any questions about the constitutional legitimacy of secession, but there is no reason it should have. Might, as the cliche goes, does not make right, and so the constitutional question of whether the federal government is acting within its rightful powers to prevent a state from peaceably withdrawing itself from the Union cannot have been settled simply because the federal government was able to do so successfully. And of course, the Confederacy did itself and the underlying question no favors by firing on Fort Sumnter, making the withdrawal not so peaceable and providing Lincoln with a justification for sending in the troops. But I think the question still remains: Does the constitution prevent states from seceding from the Union?

It is interesting to note that between December 20, 1860 and April 12, 1961, the day on which Confederate troops fired on Fort Sumnter, 7 states declared secession from the Union, and neither President Buchanan nor President Lincoln, despite his rhetoric, took any official action against the seceding states. Following the war, Jefferson Davis was arrested for treason, but was never in fact tried, and while there were plenty of political reasons for the blanket pardon granted to those in the Confederacy, uncertainty about the lack of constitutional legitimacy of secession was certainly among them. And the southern states were not even the first to contemplate secession. During the War of 1812, a delegation of Federalist representatives from New England broached the subject of seceding, with the Massachusetts governor even considering coming to terms of a separate peace with Great Britain.

Certainly, in any event, it is difficult to square a view of the constitution as prohibiting secession with the foundation of the United States itself, of which an animating feature was the very presumption that a people could, by right, “dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them”. Indeed, reading the Declaration of Causes of Seceding States, one can’t help but hear the echo of the original Declaration of Independence, upon which they were so obviously modeled.

So, putting aside the moral question with which the secession movement of 1861 was inextricably linked, ie slavery, was the Federal government justified in waging war against the South, and does a proper reading of the constitution really grant it the power to wage such a war?

Filed under: Constitution, secession, states' rights | Tagged: , | 43 Comments »