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OneEightHundred posted:(With the absence of the ERA, the Constitution DOESN'T prohibit discrimination based on sex, so the entire basis for this opinion doesn't even apply to Obergefell.) Only up to a point. Check the 14th out: quote:No state shall...deny to any person within its jurisdiction the equal protection of the laws.
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Jun 16, 2020 18:33
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What stops conservative groups from suing any company doing diversity hiring under title 7 nonstop?
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Jun 16, 2020 20:49
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Unormal posted:What stops conservative groups from suing any company doing diversity hiring under title 7 nonstop? With a couple specific exceptions, companies can not legally base hiring decisions on race, even if the purpose is to increase diversity. So yeah, the whole "reverse discrimination" thing that you often hear conservatives whine about can be a thing. Good luck proving it. In practice, it is easy to get around because employers can plausibly claim they hired these minority candidates for reasons other than race. (Though that may be more difficult for large employers to pull off) A legal way to go about it is that an employer could seek out minority applicants to increase the diversity of their applicant pool, though once you have your pool of applicants the hiring decision is not supposed to be based on race at all. If you are wondering, title 7 does not apply to student admission to schools, so they can still use race as a factor. (Until Roberts can find 4 more justices to say they cant) edit: The couple exceptions mentioned above, are if the company has a history of discrimination, and they have seen the light and they decide to hire partially based on race to correct previous wrongs, we might allow it for a while. The government is also apparently allowed to force contractors to prove they didn't discriminate in the past, and to remedy that if they did. Rigel fucked around with this message at 21:18 on Jun 16, 2020 |
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Jun 16, 2020 21:13
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Rigel posted:With a couple specific exceptions, companies can not legally base hiring decisions on race, even if the purpose is to increase diversity. So yeah, the whole "reverse discrimination" thing that you often hear conservatives whine about can be a thing. Good luck proving it. I see, thanks!
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Jun 16, 2020 21:56
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Reading the opinion now it's hilarious how much work Gorsuch goes to prove to all his friends that this is a textual reading and not based on any sense of morality or the spirit of anti-discrimination bills.There are so many hypotheticals teased out just to make a very weird point that Title7 doesn't let you discriminate against gay people because in 1964 sexuality is dependent on the sex of people you have sex with and therefore any anti-gay discrimination automatically includes sex discrimination even if the discriminator isn't sexist but just loves being homophobic. Like I'm glad he arrived at the right answer but this was such a stupid and meandering way to arrive at the conclusion that sexuality and gender are different but often related. Then again, I guess the lawyers knew their audience and inceptioning him to get there by taking advantage of the outdatedness/imprecisions of the terms is pretty clever. Would this decision protect non-binary people from discrimination? I feel like it wouldn't if it's purely built on who people are sexing. BWV fucked around with this message at 04:13 on Jun 17, 2020 |
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Jun 17, 2020 03:59
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Rigel posted:If you are wondering, title 7 does not apply to student admission to schools, so they can still use race as a factor. (Until Roberts can find 4 more justices to say they cant) Schools who've been sued recently over affirmative action admissions programs have dodged this question by not having racial quotas (which are usually illegal), but by having more complex criteria that focus on things like academic performance compared to one's high school. Here's a podcast on the subject, and here's the Fifth Circuit writing about the specifics for UT Austin.
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Jun 17, 2020 04:36
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I doubt Gratz ever gets overturned. Applications would have to be completely blind and at least one of the conservative judges would recognize that point
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Jun 18, 2020 03:08
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DACA lives
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Jun 18, 2020 15:04
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"For the reasons that follow, we conclude that the Acting Secretary did violate the [Administrative Procedure Act]," and the decision to rescind DACA "must be vacated." holy poo poo
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Jun 18, 2020 15:06
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I fear Roberts is doing this because he's going to swing conservative on June Medical
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Jun 18, 2020 15:10
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What was the vote?
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Jun 18, 2020 15:13
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5-4
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Jun 18, 2020 15:13
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I'm not fully sure it's 5-4, the concurrence/dissent is muddled.
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Jun 18, 2020 15:20
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Taerkar posted:I'm not fully sure it's 5-4, the concurrence/dissent is muddled. Seems to be 5-4 in the main, but with all four dissenting conservatives concurring in part and dissenting in part, and even Sotomayor dissents in part despite being part of the majority.
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Jun 18, 2020 15:23
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Potato Salad posted:I fear Roberts is doing this because he's going to swing conservative on June Medical I figured it's more they're giving these rulings to soften the blow of when they release a bunch of rulings that protect Trump on the tax return and subpoena cases (ie: the only cases Trump really cares about in the end).
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Jun 18, 2020 15:27
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How likely is it that the impeachment trial made Roberts move toward the center?
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Jun 18, 2020 15:46
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Armack posted:How likely is it that the impeachment trial made Roberts move toward the center? Hes always been a "you have to dot your i's and cross your t's if you want to do terrible things!" type.
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Jun 18, 2020 15:54
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hobbesmaster posted:Hes always been a "you have to dot your i's and cross your t's if you want to do terrible things!" type. https://mobile.twitter.com/AdamSerwer/status/1273622905570627586
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Jun 18, 2020 16:00
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Any chance this guy isn’t full of poo poo? https://twitter.com/joshjcraddock/status/1273614853215748097
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Jun 18, 2020 16:09
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hobbesmaster posted:
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Jun 18, 2020 16:10
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Shimrra Jamaane posted:Any chance this guy isn’t full of poo poo? He's part of the conservative legal movement so yes in one sense.
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Jun 18, 2020 16:14
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Shimrra Jamaane posted:Any chance this guy isn’t full of poo poo? If the author leaked, you could probably tell which way it went, even if you weren't able to read the decision
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Jun 18, 2020 16:18
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Jethro posted:Plus, it's not the impeachment as much as the pending probable presidential electoral pasting that, I think, would give Roberts pause when it comes to enacting the conservative agenda. Throw some bones to the Dems now, instead of pissing people off and giving ammunition to the "pack the court" movement. Better to take a strategic L and keep his 5-4 majority than take a W which leads to a 6-5 minority. Probably the big test would be a narrow ruling in June Medical that "we see nothing substantively different to the circumstances here that differ from Whole Woman's Health"; it's something I could see Roberts possibly swinging on as a new switch-in-time-to-save-nine.
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Jun 18, 2020 16:24
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TinTower posted:Probably the big test would be a narrow ruling in June Medical that "we see nothing substantively different to the circumstances here that differ from Whole Woman's Health"; it's something I could see Roberts possibly swinging on as a new switch-in-time-to-save-nine. And he seems to love threading those needles
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Jun 18, 2020 16:25
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Conservatives are such whiny assholes. Abortion is nearly abolished as a federally protected right and they got a big win in that laughable decision about pregnancy crisis centers. It's like going 15-1 and winning the Super Bowl and then bitching you lost one game.
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Jun 18, 2020 16:27
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Groovelord Neato posted:He's part of the conservative legal movement so yes in one sense. Of course but are decisions leaking actually a thing that happens?
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Jun 18, 2020 16:27
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Groovelord Neato posted:Conservatives are such whiny assholes. It's a shame that Bostock didn't drop two weeks sooner, because the howls of outrage over something that's really been a foregone conclusion since Price Waterhouse would've been a perfect capstone to Meltdown May.
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Jun 18, 2020 16:30
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Shimrra Jamaane posted:Any chance this guy isn’t full of poo poo? The replies to this are wonderfully insane btw... https://twitter.com/jncramb/status/1273632295031910400
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Jun 18, 2020 16:32
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Also people bitching about how Christians are being persecuted because they can't discriminate against gay people.
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Jun 18, 2020 16:34
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Groovelord Neato posted:Also people bitching about how Christians are being persecuted because they can't discriminate against gay people. “JESUS SAID I DONT HAVE TO BACK A CAKE FOR A F** IF I DONT WANT TO.”
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Jun 18, 2020 16:35
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Groovelord Neato posted:Also people bitching about how Christians are being persecuted because they can't discriminate against gay people. 
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Jun 18, 2020 16:35
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BWV posted:Would this decision protect non-binary people from discrimination? I feel like it wouldn't if it's purely built on who people are sexing. Non-binary people are nearly universally considered trans, barring transmedicalists (who are shithead assholes) and some number of non-binary people who prefer not to identify as transgender (who are valid, but confusing), so if this protects binary trans folk I would assume it would also protect people who are non-binary for much the same reasons. If somebody is assigned male at birth and you fire them for wearing nail polish or a dress or whatever, the argument seems to be that you wouldn't have done that if they were assigned female at birth. Gender (or the lack thereof) doesn't seem to be a factor, only assigned sex.
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Jun 18, 2020 16:42
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Craptacular! posted:There was sort of a negotiable conservative opinion on gay marriage, one a hard-line conservative gay once gave to me, that the government from the top-down should abolish any legal recognition of anything called marriage, essentially turning it into a religious ritual with no legal implications like a baptism or whatever, and come up with a secular institution that is the very same thing but without any churches claiming to have an investment in it.
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Jun 18, 2020 17:07
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Marriage is one of the most ancient governmental institutions there is so getting the government out of marriage sure is a big brain take.
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Jun 18, 2020 17:09
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Shimrra Jamaane posted:Marriage is one of the most ancient governmental institutions there is so getting the government out of marriage sure is a big brain take. Seriously. The first evidence we have of marriage as an officially recognized status predates Christianity by thousands of years, and Judaism by one and a half millennia.
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Jun 18, 2020 17:38
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DEPARTMENT OF HOMELAND SECURITY ET AL. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL. Holding / Majority Opinion (Roberts): In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated. … Within days of Acting [DHS] Secretary [Elaine] Duke’s rescission announcement [terminating DACA and winding it down], multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U. S. District Courts for the Northern District of California (Regents, No. 18–587), the Eastern District of New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. … The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so. The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” It requires agencies to engage in “reasoned decisionmaking,”and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment”. But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction. The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’” That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review, §701(a)(1), or that the “agency action is committed to agency discretion by law,” §701(a)(2). The latter exception is at issue here. To “honor the presumption of review, we have read the exception in §701(a)(2) quite narrowly,” confining it to those rare “administrative decision[s] traditionally left to agency discretion”. This limited category of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, and it is on that exception that the Government primarily relies. … DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” And the result of these adjudications—DHS’s decision to “grant deferred action,” B—is an “affirmative act of approval,” the very opposite of a “refus[al] to act”. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” … Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA. The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies. Section 1252(b)(9) bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien.” 66 Stat. 209, as amended . That targeted language is not aimed at this sort of case. ... Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders.”...The rescission, which revokes a deferred action program with associated benefits, is not a decision to “commence proceedings,” much less to “adjudicate” a case or “execute” a removal order. … Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. … It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michigan, 576 U. S., at 758. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer “a fuller explanation of the agency’s reasoning at the time of the agency action.” This route has important limitations. When an agency’s initial explanation “indicate[s] the determinative reason for the final action taken,” the agency may elaborate later on that reason (or reasons) but may not provide new ones. Alternatively, the agency can “deal with the problem afresh” by taking new agency action. An agency taking this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action. … The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path….Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to ensure that the rescission is not upheld on the basis of impermissible “post hoc rationalization.” But despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. By contrast, Secretary Nielsen’s new memorandum offered three “separate and independently sufficient reasons” for the rescission, id., at 122a, only the first of which is the conclusion that DACA is illegal. Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. … The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum….They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us. … The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision. We turn, finally, to whether DHS’s decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke’s justification for the rescission was succinct: “Taking into consideration” the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General’s conclusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the “DACA program should be terminated.” … we focus our attention on respondents’ third argument—that Acting Secretary Duke “failed to consider . . . important aspect[s] of the problem” before her. … the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. … the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. … The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA. ... Lastly, we turn to respondents’ claim that the rescission violates the equal protection guarantee of the Fifth Amendment. [Sotomayor disagrees with this part and does not join it] … First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. … Second, there is nothing irregular about the history leading up to the September 2017 rescission. when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” It was a natural response to a newly identified problem. … Finally, the cited statements [of animus against Latinos] are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus. … the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. Lineup: Roberts, joined by Ginsburg, Breyer, and Kagan, and Sotomayor (other than Part IV relating to the equal protection claim). Concurrence in Part, Concurrence in the Judgement in Part, and Dissent in Part by Sotomayor. Concurrence in the Judgement in Part, and Dissent in Part by Thomas, joined by Alito and Gorsuch. Concurrence in the Judgement in Part and Dissent in Part by Alito. Concurrence in the Judgement in Part and Dissent in Part by Kavanaugh. Concurrence in Part, Concurrence in the Judgement in Part, and Dissent in Part (Sotomayor): The majority rightly holds that the Department of Homeland Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any challenge to the rescission under the Equal Protection Clause. I believe that determination is unwarranted on the existing record and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand. Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” The three courts to evaluate respondents’ pleadings below held that they cleared this modest threshold. I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. Concurrence in the Judgement in Part, and Dissent in Part (Thomas, joined by Alito and Gorsuch): Between 2001 and 2011, Congress considered over two dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters into its own hands. Without any purported delegation of authority from Congress and without undertaking a rulemaking, DHS unilaterally created a program known as Deferred Action for Childhood Arrivals (DACA). The threepage DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Acting Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum. Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case. DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end. Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government. Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part. Concurrence in the Judgement in Part, and Dissent in Part (Alito): Anyone interested in the role that the Federal Judiciary now plays in our constitutional system should consider what has happened in these cases. Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way. I join JUSTICE THOMAS’s opinion. DACA presents a delicate political issue, but that is not our business. As JUSTICE THOMAS explains, DACA was unlawful from the start, and that alone is sufficient to justify its termination. But even if DACA were lawful, we would still have no basis for overturning its rescission. First, to the extent DACA represented a lawful exercise of prosecutorial discretion, its rescission represented an exercise of that same discretion, and it would therefore be unreviewable under the Administrative Procedure Act. Second, to the extent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by JUSTICE KAVANAUGH. Concurrence in the Judgement in Part, and Dissent in Part (Kavanaugh): For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants. … The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforcement with respect to a particular class of offenses or individuals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Congress. The Executive Branch’s exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint— namely, whether the Executive Branch’s action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA. The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. As the Court has long stated, judicial review under that standard is deferential to the agency. The Court may not substitute its policy judgment for that of the agency. The Court simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA’s arbitrary-and-capricious standard. But regardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department’s legal reasons for rescinding DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. … the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justification for rescinding DACA. Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges). … the ordinary judicial remedy for an agency’s insufficient explanation is to remand for further explanation by the relevant agency personnel. It would make little sense for a court to exclude official explanations by agency personnel such as a Cabinet Secretary simply because the explanations are purportedly post hoc, and then to turn around and remand for further explanation by those same agency personnel. Yet that is the upshot of the Court’s application of the post hoc justification doctrine today. The Court’s refusal to look at the Nielsen Memorandum seems particularly mistaken, moreover, because the Nielsen Memorandum shows that the Department, back in 2018, considered the policy issues that the Court today says the Department did not consider. … Even if certain agency adjudications have a slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule making and adjudication,” ibid., and this case involves an ongoing agency rule that has future effect—the rescission of DACA. The Nielsen Memorandum implements and explains the rescission of DACA. I am aware of no case from this Court, and the Court today cites none, that has employed the post hoc justification doctrine to exclude an agency’s official explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest official explanation was two years ago or three years ago. What matters is whether the explanation was reasonable and followed the requisite procedures. In my view, the Court should consider the Nielsen Memorandum in deciding whether the Department’s rescission of DACA satisfies the APA’s arbitrary-and-capricious standard. Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court’s decision to remand, the only practical consequence of the Court’s decision to remand appears to be some delay. The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion. … I appreciate the Court’s careful analysis, but I ultimately disagree with its treatment of the Nielsen Memorandum. I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim. https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
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Jun 18, 2020 17:53
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Gobbeldygook posted:"Get the government out of marriage" was a popular argument across the political spectrum, albeit moreso among conservatives who wanted an out. I've seen a couple polygamy advocates use it recently, although that's probably because they're unwilling to engage with the legal realities. It's also dumb as hell because they're just quibbling over ownership of the word "marriage", trying to argue that secular marriage somehow detracts from their "true" marriage (or religious marriage detracting from their secular "partnership", from the other side).
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Jun 18, 2020 20:08
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Stickman posted:It's also dumb as hell because they're just quibbling over ownership of the word "marriage", trying to argue that secular marriage somehow detracts from their "true" marriage (or religious marriage detracting from their secular "partnership", from the other side). The argument was (is?) often made by people who didn’t feel that way themselves but felt that fighting with the people who did wasn’t worth the effort.
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Jun 18, 2020 21:18
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raminasi posted:The argument was (is?) often made by people who didn’t feel that way themselves but felt that fighting with the people who did wasn’t worth the effort.
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Jun 18, 2020 22:19
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hobbesmaster posted:Hes always been a "you have to dot your i's and cross your t's if you want to do terrible things!" type. It's sometimes hard to remember that, in the Third Reich, the Holocaust was fastidiously legal.
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Jun 19, 2020 04:39
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