States Rights – Law Street

The Federal Government’s Immigration Showdown: SCOTUS Will Decide

Ajla Glavasevic — Fri, 22 Jan 2016 18:25:27 +0000

Image courtesy of [Sasha Kimel via Flickr]

President Barack Obama is set to face the gauntlet as the Supreme Court gears up to hear a case that challenges the President’s use of executive power, has the potential to wreck havoc on the 2016 Presidential election, and may go beyond judicial power by granting states more rights and control than the national government on a notoriously federally controlled area of law and politics–immigration. Twenty-six states are challenging the President’s executive actions relating to immigration implementations made in 2014 as an abuse of power and an attempt to circumvent Capitol Hill on policy making.

To date, the case is scheduled to be resolved by the court in June 2016 as the Supreme Court issued that it would review the case, thereby granting the President the authority to execute the programs prior to leaving office, should he be victorious. Read on to learn more about the executive actions in question, the procedural posture and legal history of the case, and what it all could mean for U.S. citizens and aliens in the future.

DAPA and DACA: The Troublesome Two

On November 20, 2014, an executive order was issued expanding the rights of individuals within the Deferred Action for Childhood Arrivals (DACA) program and introduced the creation of Deferred Action for Parents of Americans (DAPA).

DACA, a program created in 2012, allows undocumented young people who came to the U.S. as children relief from deportation so long as specific criteria are met. These criteria include: 1) must be under 31 years of age as of June 15, 2012; 2) must have entered the U.S. under the age of 16; 3) must show continuous residence in the U.S. from June 15, 2007 until the present; 4) entered the U.S. without inspection (EWI) or fell out of a lawful visa status before June 15, 2012; 5) were physically present in the U.S. when applying for consideration of deferred action; 6) are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces; 7) have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors; and 8) do not pose a threat to national security or public safety.

Initially, DACA was available for a period of two years at a time–meaning that individuals were only granted temporary relief for two years before they had to re-apply and be approved by the government again. DACA also included a work authorization for those approved, but the executive action of 2014 made it and the work authorization renewable in three-year increments. Additionally, the requirement that the individual be under 31 years old as of June 15, 2012 or now no longer applies. The new DACA provisions do not discriminate against those currently over 31 years old. Further, the eligibility cut-off date was moved from June 15, 2007 to January 1, 2010. Anyone applying must show physical presence in the U.S. prior to January 1, 2010 and during the time of application.

DAPA, unlike DACA, did not have a predecessor. Under DAPA, individuals that have children who are U.S. citizens or lawful permanent residents (LPRs) may obtain relief from removal should they meet the following criteria: 1) as of November 20, 2014, have a son or daughter who is a citizen or LPR; 2) have continuously resided in the U.S. since or before January 1, 2010; 3) are physically present in the U.S. as of November 20, 2014 and during their application for consideration; 4) have no lawful status as of November 20, 2014; 5) are not an enforcement priority; and 5) present no additional factors that would deem the granting of their application inappropriate.

Deferred action is an administrative mechanism used by the U.S. government to de-prioritize individual cases for removal for “humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is a way for the government to categorize the urgency with which individuals be removed from the country. Generally speaking, deferred action carries great discretion. It can be terminated at any point should the U.S. Department of Homeland Security deem termination appropriate and necessary. Furthermore, receiving DACA or DAPA does not provide legal status, a pathway to citizenship, or a pathway to obtain a green card, but rather permits for an individual to be legally present within the U.S. for a specified period of time. In order to be a valid permission, deferred action applications must be considered on a case-by-case basis and do not apply as all-inclusive or sweeping legal policies. An application process is required and permission must be granted for an individual to continue to stay within the U.S.

Substantive rights, immigration status, and pathways to citizenship are under the control of Congress. Only Congress can confer such rights and policies upon individuals within the confines of the U.S. However, the Executive Branch has the authority to set forth policies under prosecutorial discretion and deferred action so long as they fall within the framework of existing law.

The 26 states named in the lawsuit are greatly dissatisfied by the way that President Obama has taken to resolving the many pitfalls of current immigration policy and justice. A major point of contention for the states is that the President allegedly worked to circumvent Congressional authority and undermined the importance of the notice-and-comment process pursuant to administrative law. Notice-and-comment is an informal rule-making process, codified in the Administrative Procedure Act (APA) under § 553. It requires the agency proposing the rule to publish its proposal in the Federal Register and grant opponents or supporters of the proposed rule to comment, amend, present data and evidence for or against, and generally speaking, participate in the development of a newly proposed rule.

Additionally, while immigration is an issue controlled by federal law, the states fear that the changes made to federal immigration laws will place a great burden on the states to change their laws and be forced to provide services they are unable or unwilling to provide to individuals lacking legal status. Specifically, some states worry that the quasi-legal status and work authorizations will require the states to provide “state-subsidized driver’s licenses and unemployment insurance.”

Image Courtesy Of [Nevele Otseog via Flickr]

History of Legal Action: The Procedural Posture

Shortly after President Obama’s executive action on November 20, 2014, the highly publicized Maricopa County Sheriff, Joe Arpaio, challenged the action on behalf of Arizona in a case called Arpaio v. Obama. Arpaio’s lawsuit was dismissed by the Washington, D.C. federal court and upheld unanimously by the D.C. Circuit Court of Appeals on August 14, 2015. That decision has not been appealed to the Supreme Court.

Following in Sheriff Arpaio’s footsteps, 17 states filed a lawsuit, with 9 states joining thereafter, challenging President Obama in Texas v. United States. The President held the support of 15 states and D.C., who filed “friend of the court” briefs on his behalf. Ultimately, the Texas federal court blocked President Obama’s initiatives on a procedural basis on February 16, 2015. U.S. District Court Judge Andrew Hanen found that Texas had standing, or legal capacity and authority, to sue and that the President did not comply with the requirements of the APA, particularly the requisite need for notice-and-comment. It rationalized that the changes enacted by President Obama were substantive rules rather than simple alterations to existing and general policy, which required a specific procedural process.

The Department of Justice subsequently appealed the lower court’s decision and argued the case in front of the Fifth Circuit Court of Appeals on July 10, 2015. In a split decision, the Fifth Circuit upheld the lower court’s ruling, 2-1. The majority decision, authored by Judge Jerry E. Smith, found that Texas did, in fact, have standing to sue and that the changes to policy would greatly increase state costs and burden the states with additional processes and services as required by the national law. While it recognized that judicial review was unavailable under the APA in matters pertaining to agency discretion, it noted that the changes made to DACA and DAPA required notice-and-comment rule-making, and therefore, were non-discretionary. Further, the court ruled on an issue unaddressed by the district court and found that the President’s interpretation of the Immigration and Nationality Act (INA) was misguided and inaccurate because it vested great authority to the Secretary of U.S. Department of Homeland Security. This indirectly re-classified the specified classifications of immigrants codified in the INA and those petitioning to enter, all in violation of the Act itself.

Judge Carolyn King of the Fifth Circuit delivered a blunt dissent, ultimately stating, “I have a firm and definite conviction that a mistake has been made.” Further, Judge King argued that the case should have been dismissed as it follows prosecutorial discretion and therefore, not subject to review by federal courts. In criticism of her colleagues, she penned that allowing states to dictate national policy, particularly in areas solely within federal control, would be a great intrusion to the long-standing separations between government and state. Judge King added that the President’s executive actions were matters of general policy not subject to notice-and-comment procedure and that the interpretation of law under the INA actually sought to further the Department of Homeland Security’s mission in “[e]stablishing national immigration enforcement policies and priorities.”

Critics of the decision, including Judge King herself, highlighted the fact that the expedited appeal was anything but, as the Fifth Circuit took a very long time to render an opinion, likely in an effort to place the case under review by the Supreme Court after the conclusion of President Obama’s term in office.

The Petition Filed by the Department of Justice

In a writ of certiorari petition filed on November 20, 2015, exactly one year from the President’s executive actions, the Department of Justice sought review of U.S. v. Texas by the Supreme Court. While the Court has yet to make a decision as to whether it will review the case or not, the petition outlined key elements of President Obama’s argument demanding for review of this extremely crucial issue.

The DOJ Claims Valid Authority for Action Over States

The Department of Justice highlighted that the authority to make any and all immigration laws and policies is vested in the federal government, particularly under the control of the Secretary of the Department of Homeland Security, who hold authority to establish regulations pertaining to removal and admissibility rules. The Department has broad discretion over enforcement of immigration laws and the ability to prioritize which offenses or conduct deems immediate removal and which groups are not the top priority of government funds allocated for removal and enforcement. While 11 million removable aliens are estimated to live in the United States, the Department can only remove approximately 4 percent of those individuals within a given year. Congress has granted the Department $1.6 billion to remove those convicted of deportable crimes, thereby committing to the Secretary’s discretion in handling these cases in the most efficient manner possible. Therefore, prioritizing is of utmost importance to best allocate funding.

Additionally, the Department emphasized that continued presence through deferred action does not violate any criminal laws, as removal and inadmissibility under immigration laws is civil in nature. Deferred action has been an “exercise in administrative discretion,” that can be revoked at any point in time. It does not offer any legal status to those that fall within its classification. What is offered under deferred action, however, is work authorization protecting such individuals from exploitation under U.S. labor laws, subjecting them to taxation, Social Security, and welfare payments, and providing them with a way to make ends meet so they do not become a burden on U.S. citizens and society. Only “qualified” aliens are entitled to public benefits provided by the state in which they reside, and individuals lawfully allowed to stay within the U.S. under deferred action status are not deemed “qualified,” therefore, they are not entitled to public benefits unless their state specifically provides those under its own laws.

The Sticking Points: Substantive Arguments Against the States

Deferred action has been utilized in a variety of ways to grant individuals lawful presence in the U.S. Examples include individuals who petitioned under the Violence Against Women Act of 1994 and individuals whose lawful family members were killed on September 11, 2001 or in combat were granted temporary relief from deportation under deferred action. Decisions made based on deferred action have legally and historically been barred from judicial review.

Key elements of the petition included the Secretary’s discretion in enforcing immigration laws under resource constraints, the historical utilization of deferred action and its revocability, the security and economic interests in paying fees and applying for work authorization, and the effect that the divided Court of Appeals decision could have on the States’ ability to “frustrate the federal government’s enforcement of the Nation’s immigration laws.”

The petition discussed the lack of standing or authority by the states to bring the lawsuit, stating that private parties lack any “judicially cognizable interest” in the enforcement of immigration laws that are not threatened by prosecution, nor do collateral consequences of federal immigration policy grant a state standing to bring suit. Further, the Department of Justice noted that even if the states were able to show standing to sue, they would have to identify injury resulting from the specified policy that affects it in an “individual way.” Such an expansive reading of state standing would open a door for many more federal-state disputes in the long run and give states far-reaching and independent authority to challenge federal laws with more regularity.

The government further argued that the states lack a valid claim under the Administrative Procedure Act, as the Act does not allow suit by every individual “suffering an injury in fact,” and strictly limits the scope of judicial review to those who are “adversely affected or aggrieved by agency action.” Additionally, the government noted that the agency’s discretion in deferred action is not reviewable by the courts as there is “no meaningful standard against which to judge the agency’s exercise of discretion.”

An entire section of the petition offered examples of the Secretary’s authority to implement deferred action without challenge due to the long-standing history and nation of this power. Ultimately, the Department of Justice pointed to the authority vested in the Secretary to implement the executive actions as lawful within the scope of his power. Finally, the petition outlines the reasoning for why the deferred action is not subject to notice-and-comment rule-making as required by the APA because the actions were “general statements of policy” exempt from such procedural requirements.

What Could It All Mean?

Should the Supreme Court uphold the Fifth Circuit’s decision, great authority would be vested onto the states over a historically federal issue, making it inexplicably difficult to pass any immigration laws on a national level. It would force millions of people, subject to removal but not removal priorities, to continue living in the U.S., working off the books or not working at all, potentially creating a burden on society in the long run. Further, it could ultimately punish the individuals that gained temporary lawful relief under the 2012 DACA provisions that have never been challenged by any of the 26 states in question. The decisions spanning over the last year could potentially invalidate the 2012 DACA actions as well.

While the importance of review is undoubtedly clear, from an administrative law aspect, a constitutional law aspect, as well as a separation of powers aspect, it is unclear exactly what the fruit of review will be. If history were any indication, President Obama would be victorious in his challenge. However, the lower courts have addressed key issues that fall squarely within the context of interpretation and interestingly added some of their own issues, which remain undecided by the district court. How the Supreme Court reads and interprets the statutes in question, as well as its analysis of the interworkings of several federal laws will be determinative for its decision. This may ultimately be a case about procedure and the process of implementation rather than power and constitutionality of law.

Resources

Primary

United States of America v. Texas: Writ of Certiorari

U.S. Department of Homeland Security: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children and With Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents

Additional

Politico: Obama Administration Takes Immigration Battle to Supreme Court

Politico: SCOTUS Keeps Obama Immigration Case on Track For Ruling by Summer

Cornell University Law School – Legal Information Institute: 5 U.S. Code § 553 – Rule Making

Immigration Equality: Deferred Action for Childhood Arrivals

The Atlantic: A Ruling Against the Obama Administration on Immigration

The New York Times: Appeals Court Deals Blow to Obama’s Immigration Plans

American Immigration Council: Understanding the Legal Challenges to Executive Action

National Public Radio (NPR): Supreme Court Agrees to Hear Case on Obama’s Immigration Actions

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The Federal Government’s Immigration Showdown: SCOTUS Will Decide appeared first on Law Street.

Publicity Law: The Line Between Creativity and Identity Theft

John Gomis — Tue, 21 Oct 2014 07:15:57 +0000

Image courtesy of [Casey Stinnett via Flickr]

In such a celebrity-obsessed society, famous peoples’ identities are sometimes co-opted for other reasons. However, American law does protect identities, to some extent, through something called “the right of publicity.” Read on to find out about whether the laws we have in place to protect rights of publicity are adequate or lacking.

What is the right of publicity?

The right of publicity protects a person’s right to control the commercial use of elements of his or her identity e.g. their name, voice, or likeness. It allows individuals whose identities have been misappropriated to bring civil claims against the offending entities. In several estates, it extends beyond the death of the relevant individuals, enabling their estate or heirs to bring infringement claims on their behalf.

However, the nature and extent of publicity rights protections varies from state to state. For example, Indiana allows publicity rights claims to be brought for misappropriation of an individual’s “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms.” Rights in these identity elements are protected up to 100 years after the individual’s death. Indiana grants uncommonly expansive publicity rights protection. Because there is no federal right of publicity and there are many differences in protection among the states, many publicity rights claimants often resort to forum shopping. That means that they figure out what court or jurisdiction they think will be friendliest to their case, and bring the case there.

The possibility of forum shopping creates a “race to the bottom” of the First Amendment ladder. Given the vast reach of entertainment content due to electronic broadcasting and the internet, content providers have to tailor their broadcasts to the rules of the most plaintiff-friendly jurisdictions in order to protect themselves from publicity rights claims. Because social media allows so many permutations of appropriating elements of a person’s identity, the range of actions that can infringe on publicity rights is not entirely clear. Moreover, in many jurisdictions, the publicity rights laws have not developed enough to keep pace with the increasing possibilities of infringement created by the ability to use the internet.

Who thinks the current laws are adequate?

Proponents of the adequacy of current publicity rights laws argue that claims about the need for a federal publicity right are ill-informed because the Lanham Act (15 U.S.C. 1125) already creates federal standards for publicity rights claims. This act allows plaintiffs to file a federally based claim for infringement. Also, the differences in state publicity laws reflect the needs of different jurisdictions. The fact that certain states do not have such laws may reflect a reasoned and considered policy determination of their legislatures and federalizing the right may undercut those legislative policy needs. Moreover, such a law would infringe on states’ rights to determine which claims may be brought in their courts. If the federal publicity right preempts the state laws, then it could easily overprotect some publicity rights and under-protect others. A uniform federal law couldn’t possibly account for the nuances of different states’ needs with respect to publicity rights. Furthermore, claimants often have difficultly forum shopping because many states have choice of law rules that determine where claims need to be litigated.

What’s the argument to change the laws?

Opponents of the adequacy of the current realm of publicity rights assert that a federal publicity right would be Constitutional under the Commerce Clause. Publicity rights affect a number of issues relating to interstate commerce including what can be broadcast over several channels such as radio, television, and the internet. The rights affect multi-state advertising campaigns and the distribution of products between states as well. Furthermore, forum shopping makes it difficult for promoters to know when their actions will open them up to liability because it is not realistically possible for businessmen to cover themselves against 50 different jurisdictions’ rules and still effectively run business. This is especially true when a dead person’s rights are involved and the infringement claim involves media that is broadcast nationwide.

Even the claims under the Lanham Act are limited because federal law is interpreted differently in different geographic federal circuit jurisdictions and federal court decisions are not binding on the state courts within their jurisdiction. Moreover, the concept of what constitutes a person’s “likeness” varies between states so protected identity elements in one state may not be protected in another. A federal publicity right statute may solve this problem but the current law does not. Furthermore, publicity rights laws are not always evolving at a pace commensurate with the increasing capabilities of potential infringers.

Conclusion

Publicity laws have run into some problems as the years go on. One big issue is the inconsistency between different states and jurisdictions, and the publicity laws they implement. Another issue is the proliferation of the internet specifically and technology in general. With the resources we now have, it’s entirely possible to create a facsimile of someone’s identity, particularly through tools like social media and photoshop. It’s important that we make sure that people remain in control of their own identities, without infringing on creativity. The current laws are apt in some ways, but could use some updating.