Monthly Archives: November 2019

The Future of DACA

By tmess2 | Published November 29, 2019

Earlier this month, the Supreme Court held oral arguments on the validity of President Trump’s “decision” to terminate the Deferred Action for Childhood Arrivals (DACA) program established under President Obama.  The program — limited to those brought here as children who meet certain criteria — assures participants that they will not be deported and gives them some legal rights.  President Trump — rather due to his opposition to immigrants from Latin America or his hatred for anything that President Obama accomplished — decided to terminate this program, thereby subjecting individuals who were brought here as children without proper documentation to deportation at any time that they are found by Immigration and Customs Enforcement Agency regardless of what they have done while living in the United States (either good or bad).  Various individual and agencies filed suits challenging this decision, and they prevailed in the lower courts.  The Supreme Court decided to hear three of these cases (consolidated into one argument).

Before going into the issues, it is important to note one complicating factor in this case.  Before the end of his administration, President Obama tried to create a companion program (DAPA) that would potentially have covered the parents of the participants in DACA.  That expansion was blocked in the trial court and by the Fifth Circuit (the appellate court that includes Texas).  The Supreme Court took that case, but — after oral argument — Justice Scalia died.  That left a 4-4 split on the DAPA case which means that the Supreme Court affirmed the Fifth Circuit without opinion as an “equally divided court.”  Because there was no opinion, there is no guidance on any of the relevant legal issues.  That absence cuts both ways in the current case.

The Trump Administration has two basic arguments.  First, they argue that DACA falls within the “discretionary enforcement” part of executive branch authority.  Stripped of legal jargon, agencies have limited resources.  As such, they have to make decisions about enforcement priorities and these decisions are generally not reviewable.  For example, a state prosecutor’s office in an urban area may decide that it lacks the resources to vigorously prosecute violent felonies and, therefore, decline to file routine misdemeanors believing that it would be a better use of state resources to let city prosecutors handle those matters in city court. Continue Reading...

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Impeachment and the 2020 Primary

By tmess2 | Published November 23, 2019

We are entering into an unprecedented situation in American history.  Three times before, the House has given serious consideration to adopting articles of impeachment against a sitting president.  The last two times — Richard Nixon and Bill Clinton — the House Judiciary Committee took up potential articles of impeachment during the mid-term election year of the president’s second term.  While there would be lingering impacts of the impeachment process in the succeeding presidential election, the sitting president was not a prospective candidate and the process was over before the primary campaign really got started (with the Nixon process ending with his resignation in August of 1974 before the mid-term election and the Clinton process ending with the conclusion of the Senate trial in February 1999 as potential candidates for 2000 were just starting their run).

The impeachment of Andrew Johnson is the closest precedent to the current situation.  While Johnson’s impeachment trial extended into May of 1868 (a presidential election year), there are some major differences that preclude that situation from being a true precedent.  The biggest, of course, is that the nomination process was entirely different back then.  There were no primaries and the state parties had strong control over their delegations which tended to follow the now-abolished block vote tactic.  While Johnson had some support to get a chance to run in 1868, that support was almost entirely from the readmitted former rebel states and he never really had a path to the nomination.  Additionally, in the days before radio and television, the primary coverage was through partisan newspapers.  While partisan television and radio networks may try to slant coverage today, it is possible for voters to view the impeachment hearings and trials in their entirety (either live or by retrieving the video later).

Now, of course, candidates wanting to be President have to run in primary elections that run from February to June and the votes in those primaries bind (to various degrees) the delegates to the national convention.   Also, because primaries are public elections, candidates have a deadline to file for running and have to campaign for votes. Continue Reading...

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A Letter to my Deceased Mom on the Impeachment Hearings

By DocJess | Published November 22, 2019

…but first, if you don’t know me personally, you don’t know my personal political leanings as “So far left that if the world were flat, I’d fall off the West Coast”. Thank mom. However, in her later years, she was afflicted with a brain tumor. We are not sure if she turned on Fox News one day and that caused the tumor, or if the tumor made her right wing…. but it’s important to understanding the letter.

Dear Mom —

If you were still with us, I know you’d be glued to the hearings every day. And I know we’d talk every night about them. I can hear your voice, and I’m sure you’d say “Why can’t you be more like that Elise Stefanik? She’s so smart, and I’m sure you’d share her opinions if you hadn’t been brainwashed by the Democratic Party.” Continue Reading...

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When is Late too Late?

By tmess2 | Published November 11, 2019

Over this past week, former Democrat-turned Republican-turned Independent-turned Democrat New York City Mayor, Media Mogul, and actual Multi-Billionaire Michael Bloomberg filed paperwork to run in the Alabama Democratic Presidential Primary.

At this point, Mayor Bloomberg has not officially announced that he is running for President.  It was just necessary to file to be on the Alabama ballot to keep his options open.  With a deadline of Friday, Mayor Bloomberg has not yet filed for the New Hampshire primary.  (He is not alone.  Of the candidates who have qualified for the November debate, Cory Booker and Tom Steyer have not yet filed for the New Hampshire primary.   Likewise, Julian Castro — who has met the donor threshold for the November debate but seems unlikely to meet the polling threshold — also has not yet filed for the New Hampshire primary.)  But let’s assume that he (or somebody else who missed the deadline for Alabama) might still get into the race.  Is it too late for somebody new to get in the race.

By requiring that every state allocate delegates proportionately, the Democratic rules theoretically make it possible that nobody will win a majority of delegates to the Democratic convention allowing those delegates to revert back to the days in which the convention actually had to choose between several candidates.  In those days, winning key primaries was a factor in that decision.  So it was not necessary to enter the race early and compete in all primaries. Continue Reading...

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Title VII and Sexual Orientation/Gender Identity — Some Thoughts on the Supreme Court Argument

By tmess2 | Published November 3, 2019

Most summaries of the Supreme Court arguments on the three Title VII cases on sexual orientation/gender identity reflect that the arguments were a rather convoluted mess.  While I have a hunch that we are heading toward a 5-4 decision with the judges splitting on partisan lines, there was enough in the argument to blur the lines as justices seemed to depart from their traditional stances.

One of the big debate in legal fields over the past 100 years is about the theory of “legal realism.”  In oversimplified terms, legal realism contends that judges are just politicians wearing robes and that they decide cases based solely on their policy preferences.  The alternative theory, as expounded by Chief Justice Roberts during his confirmation hearing, is that judges are just umpires calling the balls and strikes based on rules drawn up by others.  In this latter school of thought, judges are trying to interpret the meaning of texts and should not be concerned about the real world consequences of their decisions.

Much of the debate in the ball and strikes theory is about the proper method of interpreting legal texts.  In recent years, conservatives have been big on textualism.  Textualism posits that words in a text have meaning.  If some of the terms are ambiguous, there are rules that can be applied to clarify the text (e.g., by looking at the term in the context of that statute and how that term is used in other similar statutes).  The alternative to textualism is often a reference to legislative history, but — as many statutes were written during a time when liberals had the upper hand in Congress — legislative history (primarily the reports summarizing what a bill was intended to achieve) often supported a more liberal result.  So conservative judges argued that those reports were never actually approved by Congress and that judges should only look at what Congress actually passed — the statutory language itself. Continue Reading...

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