Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Tuesday, May 26, 2015

Immigration and the President: 5th Circuit ruling on motion to stay in Texas v. U.S.

The Order enjoining the Obama administration from implementing DAPA (granting temporary legalized status to as many as 4.3 million persons residing in the United States without authorization) will remain in force until after the 5th Circuit Court of Appeals has a chance to decide the merits of the case. 

After President Obama announced a program (DAPA) "[a]llowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years ... provided they have lived in the United States continuously since January 1, 2010, and pass required background checks." If implemented, this action would grant temporary legal status to up to 4.3 persons residing in the United States without legal authorization. Texas and 25 other states sued in U.S. District Court in Texas to set aside the administration's action on the grounds that a) the administration failed to follow the rulemaking procedures set out on the Administrative Procedures Act (the APA) and that the President had violated the separation of powers by usurpsing Congress' legislative authority.

The Disctrict Court enjoined implementation of the program and held that the Obama administration had violated the APA. It did not rule on the constitutional grounds, but it was pretty clear from the Court's ruling that if forced to reach the constitutional issues, it would conclude that the administration had acted unconstitutionally.

Today the 5th Circuit denied the Obama administration's request to lift the stay. It will hear the merits of the administration's appeal in July, but its opinion today gives us clues to how it will approach the merits. The administration should not be encouraged. Here are a few snippets:

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.

Pages 23-24.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.

Pages 24-25

[N]or does deferred action pursuant to DAPA mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,” a change in designation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify.

Page 26

[W]e would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.

Page 28

The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,”and there was evidence that the DACA application process itself did not allow for discretion, regardless of the approval rate.

Page 35

DAPA modifies substantive rights and interests—conferring lawful presence on 500,000 illegal aliens in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law.

Page 37

 

 

May 26, 2015 in Scaperlanda, Mike | Permalink

Thursday, February 19, 2015

DAPA enjoined

As I have written elsewhere, I favor comprehensive immigration reform, including some form of amnesty for many of the 11-12 million people currently residing in the United States without authorization.  But, a formal repreive - even a temporary one - for those residing here illegally must, under our Constitution, come via legislative action not executive fiat. Last November, frustrated by congressional impasse, President Obama directed Homeland Security to give a formal 3 year repreive (called DAPA) to 4 to 5 million persons living in the United States without authorization. It is my assessment that this action and subsequent action by the Secretary of Homeland Security amounted to unconstitutional legislating by the Executive (I may elaborate in a later post).

26 states sued to enjoin the enforcement of DAPA, and this past Monday a federal judge granted a preliminary injunction halting the implementation of DAPA. In a circumspect opinion, the judge ruled that Homeland Security failed to comply with the notice and comment requirements of the Adminstrative Procedures Act. The court very properly declined to address the constitutional separation of powers issues at the preliminary injunction stage because "[j]udging the constitutionality of action taken by a coequal branch is a 'grave' and 'delicate duty' that the federal judiciary is called on to perform. ... if there is a non-constitutional ground upon which to adjudge the case, 'it is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question.'"

Based upon its conclusion (rightly I think) that the administration engaged in substantive rulemaking rather than prosecutorial discretion, I have little doubt that this court will find a separation of powers violation if it reaches the constitutional issue, but I applaud the judge's efforts to avoid the constitutional issue.

February 19, 2015 in Scaperlanda, Mike | Permalink

Tuesday, December 16, 2014

President Obama's Immigration Action Unconstitutional According to U.S. District judge

A United States District judge has concluded that President Obama's Executive Action on Immigration is unconstitutional as beyond the president's prosecutorial discretion. The opinion is here.

December 16, 2014 in Scaperlanda, Mike | Permalink

Wednesday, December 3, 2014

Obama's Executive Order on Immigration: Is it Legal?

Although I favor comprehensive immigration reforms, including relief for many of those persons living and working in the United States in an undocumented status, I think the President unconstitutionally crossed the line between prosecutorial discretion (an Executive function) and policy making (a legislative function) when he signed an Executive Order, which will allow several million undocumented persons to remain in the United States.  For my reasoning, see this post on Aleteia.

December 3, 2014 in Scaperlanda, Mike | Permalink

Thursday, November 13, 2014

Immigration Law Symposium at the University of Oklahoma

Join us tomorrow for a symposium titled Chae Chang Ping v. U.S.: 125 Years of Immigration's Plenary Power Doctrine hosted by the Oklahoma Law Review. The symposium will be held in the Bell Courtroom of the law school from 9:30 to 12:30 on Friday, Nov. 14. CLE credit is available. Speakers include Rose Cuison-Villazor, Kevin Johnson, David Martin, Margaret Taylor, and yours truly. Unfortunately a cancelled flight will keep Victor Romero from joining us.

November 13, 2014 in Scaperlanda, Mike | Permalink

Monday, September 22, 2014

SSPX Succumb to modernity: Update on black mass in OKC

Thousands of faithful and faithfilled Catholics along with members of other Christian faiths attended a Holy Hour and Eucharistic Procession at St. Francis Church in OKC yesterday afternoon to pray for Oklahoma City as a group of satanists prepared to hold a public black mass (sans consecrated host) at the OKC Civic Center. As reported by Anamaria Scaperlanda Biddick, "Archbishop Coakley said during the Eucharistic Holy Hour and outdoor Eucharistic procession that he and several bishops, dozens of priests and some 3,000 lay persons 'gather not to protest.' He urged attendees to 'put aside the outrage,' and instead 'adore, and listen to the holy Lord, and open our hearts to the promptings of the spirit.' It was a beautiful and reverant event reminding Catholics of the Lord's presence in the Eucharist, a fact that even the satanists seem to understand.

In recent column, Archbishop Coakley continued to urge people to stay away from the Civic Center before and during the staging of the black mass: "I am aware that other groups are planning to show their opposition to the blasphemous event that evening at the Civic Center. I urgently ask everyone to avoid confrontations with those who might oppose them. Our witness ought to be reverent, respectful and peaceful." 

In another show of disobedience to the local ordinary, the schismatic SSPX was one of the "other groups" who ventured downtown to the Civic Center. Their presence, along with other groups, completely changed the narrative as it played out on local television. 

The Archbishop's focus was on reverant prayer, Christian unity in Christ's body, and continued conversion of those attending the Holy Hour in addition to conversion of those staging the blasphemous event. The protests by SSPX and others at the Civic Center allowed the media to frame the narrative as one of clashing First Amendment rights - the free speech rights of the protestors against the religious freedom rights of the satanists.

Lost in this narrative was the authentic Catholic response: 1) a belief that Christ really is present in the Eucharist, 2) the devil, evil, and demonic forces are real and are dangerous to people and communities who open themselves up to these forces, 3) through Christ's passion, death, and resurrection, final victory, but skirmishes remain as long as this life endures, and 4) our response is prayer, the Eucharistic, and continued conversion and not clash of modern rights.

FYI, 88 people bought tickets to the black mass and 42 of those attended. Please pray for their souls. Many have told me that the Catholic Church should have just ignored this event because by opposing it and responding to it, it received much more media attention than it otherwise would have received. My response: If this had been a blasphemous b-movie, I would have agreed. But, as the Archbishop said, there is a very real danger to a community because "satanic ritual invokes powers of evil and invites them into our community."

Update: Here is Archbishop Coakley's homily given during the Holy Hour.

September 22, 2014 in Scaperlanda, Mike | Permalink

Saturday, September 20, 2014

Student centered legal education - RALS

Big thanks to Mark Osler for organizing and Rob Vischer for hosting the RALS conference at St. Thomas this week. There were many excellent panels and presentations, including by MOJ’ers John Breen, Susan Stabile, Amy Uelman, and Rob Vischer. Titled “Religious Identity in a Time of Challenge for Law Schools,” the theme that tied the conference together for me was refreshing and intentional emphasis on students. With strong faculty governance many law schools (and I suspect many institutions of higher educaiton) have created cultures around faculty prefences and comfort. As a quick example, if you were to study the course offerings at a given schools, the number of credit hours devoted to different subjects, and the frequency of courses offerings, I suspect the organizing principle would be faculty desire. The market is forcing law schools to move toward a more student centric model, but the transition will often be painful as faculty members are asked to leave their comfort zones, perhaps teaching more, changing teaching pedogogy, teaching different subjects, advising students in a more intense way than in the past, etc. The Deans Panel and panels on Employment and Student Well-Being; Scholarship; and The Challenge of Pope Francis were testimony to the successes achieved and the challenges and obstacles that still remain in this cultural transformaton. A key to success is, as Dean Tacha and others said, the building of community, especially among the faculty, that is other regarding, centered on the students, their education, well being, and professional formation.

September 20, 2014 in Scaperlanda, Mike | Permalink

Thursday, August 21, 2014

black mass Update: Stolen Host Returned

Archbishop Coakley announced Thursday that the consecratedHost at the center of a lawsuit filed in Oklahoma County District Court has been returned.

 An attorney representing the head of the satanic group presented the Host to a Catholic priest Thursday afternoon. The lawsuit sought return of the Host following multiple public statements by the head of the local satanic group that they planned to defile and desecrate the consecrated Host during a satanic ‘black mass’ scheduled next month in Oklahoma City.

 With the return of the Host and an accompanying signed statement from the satanic group leader that the group no longer possesses a consecrated Host, nor will they use a consecrated Host in their rituals, the archbishop agreed to dismiss the lawsuit with prejudice.

 

 “I am relieved that we have been able to secure the return of the sacred Host, and that we have prevented its desecration as part of a planned satanic ritual,” said Archbishop Paul Coakley of the Archdiocese of Oklahoma City. “I remain concerned about the dark powers that this satanic worship invites into our community and the spiritual danger that this poses to all who are involved in it, directly or indirectly.”   

 Archbishop Coakley has made repeated requests for the city’s leaders to cancel the satanic ritual in a publicly funded facility.

 “I have raised my concerns … and pointed out how deeply offensive this proposed sacrilegious act is to Christians and especially to the more than 250,000 Catholics who live in Oklahoma.” 

 On Sept. 21, the day the satanic ritual has been scheduled, the archbishop invites the Catholic community as well as all Christians and people of good will to join him in prayer for a Eucharistic Holy Hour at 3 p.m. at St. Francis of Assisi Church, 1901 NW 18, followed by an outdoor Procession and Benediction.

 “For more than 1 billion Catholics worldwide, the Mass is the most sacred of religious rituals,” the archbishop said. “It is the center of Catholic worship and celebrates Jesus Christ’s redemption of the world by his death and resurrection. We are grateful for the gift of the Eucharist and pray that this threatened sacrilege will heighten our appreciation and deepen our faith in the Lord's Eucharistic presence among us.”

August 21, 2014 in Scaperlanda, Mike | Permalink

Wednesday, August 20, 2014

Archdiocese of Oklahoma City files suit against organizers of black mass

Last month I wrote about a satanic black mass, which is scheduled to be held in Oklahoma City in September. Earlier this month, Archbishop Coakley called for prayer and penance to avert the planned sacrilege. In addition to Holy Hours, Eucharistic Processions, and Benediction, the Archbishop is asking all Catholics to say the Prayer to St. Michael the Archangel now though September 29 (the Feast of the Archangels). Please join us in this prayer

Today, the Archdiocese filed a Petition for Replevin against the organizers, contending that the consecrated host that the organizer claims to possess "must have been procured, either by that person or by another, by illicit means: by theft, fraud, wrongful taking, or other form of misappropriation." Here is a link to the Petition.

Michael Caspino of Busch & Caspino (Irvine, Ca.) and Chris Scaperlanda of McAfee & Taft (OKC) represent the Archdiocese. Yes, I'm a proud dad.

 

August 20, 2014 in Scaperlanda, Mike | Permalink

Thursday, July 24, 2014

school vouchers in a time of increasing intolerance

Catholic schools are "public" schools in the best sense of the word, contributing as they do to the public - and common - good of the communities they serve. In many communities, they serve non-Catholic and poor students and their parents.

As Rick Garnett has said on this blog many times, in a healthy society, the state ought to recognize the public character of these institutions and support them through vouchers or a similar funding mechanism.  When the public schools were de facto Protestant and an anti-Catholic spirit filled the air, many states adopted Blaine Amendments to prohibit public funds being used to support parochial schools. 

Could the Blaine Amendments - as ugly as they were - be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy? Because of the Blaine Amendments, Catholic and other religious primary and secondary schools - unlike religious colleges, which are dependent on federally subsidized student loans - have had minimal entanglement with government money.

There may come a day in the not too distant future when religious colleges and univesities will be faced with a choice: capitulate to the secular orthodoxy or ween yourself from the government teat. The Blaine Amendments unintentially shield many primary and secondary schools from this choice. Over a decade ago, James Dwyer wrote Vouchers Within Reason, which argued that vouchers might provide a way to bring relgious schools and their parental patrons to heels without have to padlock school doors or put parents in jail (his words, not mine). When I reviewed his book, less than a decade after the Religious Freedom Restoration was enacted with overwhelming bi-partisan support, I was hopeful that government strings attached to vouchers would not threaten the character and culture of these religious schools. I am much less hopeful today and therefore am inclined to see the Blaine Amendments as an unexpected blessing.  Rick, I'd be interested in your take.

 

July 24, 2014 in Scaperlanda, Mike | Permalink