By Anil Kalhan

When faced with criticism for his responses to the coronavirus pandemic, President Trump has reacted almost reflexively by touting his administration’s immigration restrictions as the centerpiece of its efforts. But long before the pandemic, Trump had amassed a considerable record of manufacturing “bogus emergencies” to pursue longer-term immigration policy goals. His latest immigration order might be his most brazenly disingenuous, using a pretextual response to a genuine crisis to hack away at basic features of the immigration system that Congress established decades ago and to impose his own policy preferences in their place by executive decree.

Last…

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 regarded as a leading case in the American constitutional anti-canon. It is not surprising, therefore, that this passage in Roberts’s opinion has garnered widespread attention. In her dissenting opinion in Trump v. …

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 court’s judgment but has no further precedential effect — does not address any of the substantive issues presented in the case. Nor does the opinion itself disclose how any of the justices voted on any of the questions before them, although there seems little mystery as to which justices were…

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 from those that were presented to Judge Andrew Hanen in the Southern District of Texas when the lawsuit was originally filed.

The plaintiffs now aggressively emphasize “lawful presence” as the primary supposed effect of both the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative that they…

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 a valid point” when they assert that the administration’s initiatives — Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals — improperly purport “to make lawful something that Congress has made unlawful.” …

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

U.S. Circuit Judges Jerry E. Smith and Jennifer Walker Elrod

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 of the opinion, written by U.S. Circuit Judge Jerry E. Smith and joined by U.S. Circuit Judge Jennifer Walker Elrod, is more measured than Judge Hanen’s cloddish, 123-page screed — although concededly, that is a rather low hurdle to clear. …

Let’s not be under any illusions: the ruling is sweeping in its tenor and potential significance

By Anil Kalhan, Dorf on Law

U.S. District Judge Andrew S. Hanen

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 the “prosecutorial discretion aspect” of the Obama administration’s initiatives, but rather as being “concerned with that part of the policy affording affirmative benefits” — an argument that, as he notes, is presented by Professor Michael McConnell in the Wall Street Journal.

According to Professor McConnell’s quick take, Judge Hanen’s opinion…

Anil Kalhan

Prof @DrexelUniv • Visiting Scholar @BerkeleyLaw @CSLSatBerkeley • Fmr intl hum rts chair @NYCBarAssn • @BrownU @YaleLawSch alum • CLE native, runner

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