By Anil Kalhan In Chief Justice John Roberts’s 5–4 opinion in Trump v. Hawaii deeming President Donald Trump’s third Muslim ban legally valid, one passage stands out as judicial clickbait: its two-paragraph discussion of Koremtasu v. United States. Korematsu, of course, is a justifiably reviled Supreme Court decision, one long…

By Anil Kalhan I t may be tempting to regard the Supreme Court’s deadlocked decision last week in United States v. Texas, the Republican lawsuit challenging the Obama administration’s 2014 immigration initiatives, as something of a “non-decision” or “punt.” The Court’s one-line opinion — which, by convention, affirms the lower…

The Republican plaintiffs’ shifting arguments reveal their lawsuit to be a political attack in search of a legal rationale — By Anil Kalhan When the justices of the Supreme Court deliberate over the issues in United States v. Texas, the Republican lawsuit seeking to invalidate the Obama administration’s immigration initiatives, they would do well to reflect upon just how far the arguments that the plaintiffs have presented to them diverge…

Critics of President Obama’s executive actions on immigration characterize them as improperly granting “lawful presence.” Here’s why that’s incorrect — By Anil Kalhan In an essay published earlier this week, Prof. Michael Kagan expresses concern that “one aspect” of the Obama administration’s executive actions on immigration might be vulnerable when the Supreme Court adjudicates United States v. Texas later this year. In particular, Kagan worries that the plaintiffs might “have…

Judge Smith’s opinion is no less mistaken for having substituted “lawful presence” where Judge Hanen would have used “legal status” — By Anil Kalhan, Dorf on Law Last week, a divided panel of the U.S. Court of Appeals for the Fifth Circuit denied the federal government’s motion for a stay pending appeal of U.S. District Judge Andrew Hanen’s preliminary injunction blocking the Obama administration’s immigration initiatives. At least rhetorically, the language…

Let’s not be under any illusions: the ruling is sweeping in its tenor and potential significance — By Anil Kalhan, Dorf on Law In a comment to an essay by Professor Michael Dorf assessing Judge Andrew Hanen’s opinion and order blocking some of the Obama administration’s recent executive actions on immigration, Professor Steven Shiffrin poses the question of whether the injunction should be understood not as questioning…