Saturday, April 18, 2015
The canard of "lawful presence" status in the Texas challenge to the DAPA policy
You can listen here to yesterday's Fifth Circuit oral argument (before Judges Smith, Elrod and Higginson) in Texas's challenge to DHS's “Deferred Action for Parents of Americans" (DAPA) immigration policy. The argument ranged widely over virtually all of the issues in the case. Here, a short word on only one of them, involving the question that engendered the greatest confusion and misunderstanding in the argument:
Friday, April 17, 2015
New Annual Book Review Issue of Tulsa Law Review Now Available
Thursday, April 16, 2015
Constitutional Interpretation and Change in the United States: The Official and the Unofficial
Monday, April 13, 2015
Originalism in the Marriage Equality Cases
Thursday, April 09, 2015
Are we really all living originalists now?
Good news for Americal political thought buffs
Tuesday, April 07, 2015
Living Originalism and Same-Sex Marriage
Two interesting amicus briefs in Obergefell v. Hodges, the same-sex marriage case currently before the Supreme Court, go to the heart of the issues discussed in Living Originalism. And they exemplify the ongoing debates over the future of originalism as an approach to constitutional interpretation.
Religion doesn't exist, so we must protect it
Monday, April 06, 2015
“You didn’t see him lying so grotesque and pasty beside the gravel road in France”
Mary L. Dudziak
The line in my title appeared in a note found in the pocket of journalist Ernie Pyle when he was killed by a sniper in Okinawa on April 18, 1945. There was more that Americans would not see, including Pyle’s own body, neatly arranged and straightened, with folded hands. A photo quickly taken of Pyle was censored out of concern that it would hamper morale, since Pyle’s work was so closely followed and he was so popular.
More Questions for Ross Douthat
The "runaway convention" red herring
An interesting article from the Washington Post notes that 27 states have petitioned Congress to call an Article V constitutional convention in order to propose a balanced budget amendment, and similar proposals are apparently pending in nine additional states totally controlled by Republicans. Fred Wertheimer is quoted as saying that we are at the brink of a genuine "constitutional crisis" should the magic number of 34 be achieved and Congress does its duty, indicated by use of the word "shall" rather than "may" in Article V, to call a new convention.
Saturday, April 04, 2015
Doug NeJaime and Reva Siegel
Constitutional design and contemporary dysfunction (and timidity): The APSA Presidential Address
Friday, April 03, 2015
Opening DOJ appellate brief on "deferred action" immigration policy in the Fifth Circuit, confirming that DAPA will not establish "new benefits" not separately authorized by statute and reg
Back in February, I explained here that Judge Hanen's analysis of DHS's new “Deferred Action for Parents of Americans" (DAPA) program depends crucially on the notion that the program entails not only DHS's exercise of prosecutorial discretion to remove certain aliens, but not others, from the United States (a "nonenforcement" discretion that the immigration statutes confer upon the Secretary), but also the agency's bestowal of several alleged affirmative “benefits” on those aliens. That assumption of the way in which the new program will operate was the basis not only of the judge's skepticism of the substantive merits of the DAPA program, but also of his holding at the preliminary injunction stage that the program cannot be implemented except pursuant to notice and comment rulemaking. It was also at the heart of a prominent defense of Judge Hanen written by Professor Michael McConnell in the Wall Street Journal. As I further explained, however, Judge Hanen and Professor McConnell were simply mistaken in their assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have themselves been promulgated pursuant to the notice-and-comment rulemaking process.
More on Indiana (and Arkansas and ...)
with Micah Schwartzman