NewYorkUniversity
LawReview

Online Features

2016

Back to the Future? Returning Discretion to Crime-Based Removal Decisions

Kevin R. Johnson

In Response to: Return of the JRAD

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest Article, Return of the JRAD, calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a “Judicial Recommendation Against Deportation” (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States. Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by revered federal district court judge Jack Weinstein. In United States v. Aguilar, Judge Weinstein issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children. One might dismiss Judge Weinstein’s recommendation as dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the modern U.S. immigration laws. He advocates the return of discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

Kevin R. Johnson, Back to the Future? Returning Discretion to Crime-Based Removal Decisions, 91 N.Y.U. L. Rev. Online 115 (2016).

The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia

Robin Bradley Kar, Jason Mazzone

After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they would not consider or vote on any replacement nominees from President Barack Obama. Instead, Senate Republicans deliberately seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have yet to engage with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the U.S. Supreme Court pending and Donald Trump, the presumptive nominee of the Republican Party, announcing his alternative list of nominees if elected, this Article seeks to bring greater attention to these risks.

We begin with history and show a striking fact that has not yet been recognized: There have been 103 prior cases in which—like the case of President Obama’s nomination of Judge Garland—an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year. By contrast, there have been only six prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all six such cases, there were, however, contemporaneous questions, not present here, about the status of the nominating President as the most recently elected President. The historical rule that best accounts for senatorial practices over the entirety of U.S. history is thus the following: While the Senate has the constitutional power to provide advice and consent with respect to particular Supreme Court nominees and reject (or resist) particular candidates on a broad range of grounds, the Senate may only use this power to deliberately transfer a sitting President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt.

Given this more than two-century long tradition, the Senate Republicans’ current plan marks a much greater departure from historical precedent than has thus far been recognized. There is, however, still a further question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. In either case, the consequences of the plan are far more serious than its architects could have originally understood. After describing both possibilities, we suggest that Senate Republicans should rethink their plan so as to avoid these newly exposed historical, pragmatic and constitutional risks. Instead of continuing forward, the Senate should do what it has always done in similar past circumstances. It should proceed to full Senate consideration of Judge Garland or any other nominees that President Obama submits in a timely manner.

Robin Bradley Kar & Jason Mazzone, The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia, 91 N.Y.U. L. Rev. Online 53 (2016).

Political Paralysis and Timing Rules

Frank Fagan

In Response to: Make Me Democratic, But Not Yet

This Essay builds on the framework of Daniel Herz-Roiphe and David Singh Grewal for overcoming political paralysis with timing rules as set forth in their recent article, “Make Me Democratic, But Not Yet: Sunrise Lawmaking and Democratic Constitutionalism.” They suggest that delayed implementation of controversial policies with sunrise rules increases the likelihood that those policies will become law. Lawmakers may not agree to a difficult reform that takes effect today, but they may agree to a difficult reform that takes effect tomorrow.

In addition to sunrise rules, I suggest that a different species of timing rule can help overcome gridlock, i.e. stabilization rules. Stabilization rules facilitate agreements differently from sunrise rules in one important respect: Instead of expanding the space for agreement by leveraging time, they do so by creating multiple versions of the same policy that apply conditionally. For example, suppose that climatologists desire a carbon tax and that skeptics oppose it. Setting aside who has the better evidence, climatologists and skeptics both justify their positions on the basis of scientific claims. To facilitate compromise, lawmakers can counterintuitively ignore the evidence altogether and instead create a stabilization rule. That rule implements a tax only when a conditional event occurs, say, when average annual temperature is increased by 1.2 degrees over pre-industrial levels or some other threshold. Otherwise, the tax is not placed into effect. This form of lawmaking recognizes that a current generation may be willing to reduce consumption for a future one, so long as it is certain that its reduction will achieve its desired effect. By expanding the space for sacrifice, stabilization rules can satisfy the normative framework of Herz-Roiphe and Grewal and its deep connection with Kantian principles of guardianship.

The Essay examines federal budget law along the same lines and offers some comments on Herz-Roiphe and Grewal’s discussion of using sunrise amendments to reform the Electoral College and representation in the Senate.

Frank Fagan, Political Paralysis and Timing Rules, 91 N.Y.U. L. Rev. Online 43 (2016).

Pleading Standards: The Hidden Threat to Actavis

Michael A. Carrier

In FTC v. Actavis, the Supreme Court issued one of the most important antitrust decisions in the modern era. It held that a brand drug company’s payment to a generic firm to settle patent litigation and delay entering the market could violate the antitrust laws. Since the decision, courts have analyzed several issues, including causation, the role of the patent merits, and whether “payment” is limited to cash. But one issue—the pleading requirements imposed on plaintiffs—has slipped under the radar. This issue has the potential to undercut antitrust law, particularly because settlements with payment and delayed entry today typically do not take the form of cash. The complexity of non-cash conveyances increases the importance of the pleading stage.

For that reason, it is concerning that courts recently have imposed unprecedented hurdles. For example, the district court in In re Effexor XR Antitrust Litigation failed to credit allegations that a generic delayed entering the market because a brand promised not to introduce its own authorized generic that would have dramatically reduced the true generic’s revenues. The same judge, in In re Lipitor Antitrust Litigation, dismissed a complaint despite allegations that the generic delayed entry in return for the brand’s forgiveness of hundreds of millions of dollars in potential damages in separate litigation. This Essay first introduces the Supreme Court’s Actavis decision. It then discusses the pleading standards articulated by the Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Turning to the cases that applied excessively high pleading requirements, it focuses on the Effexor and Lipitor cases. Finally, it analyzes the settlement cases that applied a more justifiable analysis.

Michael A. Carrier, Pleading Standards: The Hidden Threat to Actavis, 91 N.Y.U. L. Rev. Online 31 (2016).

State Motives Do Not Control the Preemption Inquiry under the Federal Power Act

Miles Farmer

In Response to: FPA Preemption in the 21st Century

In his response, Farmer expands upon Christiansen’s proposed preemption analysis in the electric power sector context, by examining the question whether the State’s purpose in enacting a law is relevant to determining whether that law is preempted by the FPA. The answer to this question is critical to discerning how Christiansen’s proposed preemption inquiry would work in practice. The Response argues that, despite loose language in Oneok v. Learjet, courts analyzing whether a state law is preempted should evaluate only the manner in which the law functions and the effects it has. The State’s purpose, as illuminated through a statutory declaration of intent or through legislative and regulatory history, is relevant to this inquiry only insofar as it sheds light on the question of how the law actually applies. Farmer’s Response urges the Supreme Court to use the opportunity presented by Hughes v. Talen Energy Marketing to untangle Oneok’s inadvertent (and incorrect) implication that the State’s motive controls the preemption inquiry.

FPA Preemption in the 21st Century

Matthew R. Christiansen

On February 24, the Supreme Court will hear oral argument in Hughes v. Talen Energy Marketing. In deciding this case, the Court must determine whether an effort by the State of Maryland to incentivize the construction of new power plants is field preempted by the Federal Power Act (“FPA”)—that is, whether the Maryland law intrudes on an area that is exclusively the federal government’s to regulate.  This Comment urges the Court to evaluate Maryland’s regulation under a conflict-preemption, as opposed to a field-preemption, standard. In particular, the Court should clarify that field preemption—a doctrine that prohibits any state regulation in a particular area of the law—applies only when a State targets the core aspects of federal jurisdiction under the FPA, namely the Federal Energy Regulatory Commission’s (“FERC”) ability to determine whether a wholesale rate is just and reasonable.  Conflict preemption—which provides that state laws are preempted only when they interfere with or frustrate the federal regulatory regime—provides a far superior framework for evaluating the type of law at issue in Hughes.  It conforms more closely to the FPA’s core objectives, furthers important state policies, and somewhat paradoxically, enhances FERC’s ability to regulate effectively the aspects of the electricity sector under its jurisdiction.  Not only is a conflict-preemption approach good policy, it is also entirely consistent with the Court’s FPA preemption jurisprudence.  In particular, the Court’s prior decisions can be read to support a less intrusive field-preemption inquiry—a reading which, this Comment argues, should be applied the facts before the Court in Hughes.

Matthew R. Christiansen, FPA Preemption in the 21st Century, 91 N.Y.U. L. Rev. Online 1 (2016).

2015

Return of the JRAD

Jason A. Cade

Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar, he recommended that the government not deport him, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief. As a result, the immigration system is in tension with the principle that under a humane system of justice the penalty should fit the crime.

Judge Weinstein’s sentencing order in Aguilar points the way to an administrative reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history. This essay argues that a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions. Immigration authorities could rely on such recommendations—as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications)—as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation. While this presumption can and should be overcome in some situations, deportation should be the exception in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction. So long as Congress fails to restore adjudicative discretion to immigration judges or to rollback over-inclusive deportation grounds through legislative means, the system must rely on second-best solutions to achieve proportionality.

Noerr-Pennington Immunity and the Alien Tort Statute

Aaron P. Brecher

To what extent should a court risk chilling the right to petition the government by allowing evidence of unpopular petitioning to prove the violation of customary international law? In two recent lower court cases, plaintiffs alleging human rights abuses brought suit in federal court under the Alien Tort Statute (“ATS”) based on petitioning activity, using such activity to show the connection to U.S. territory required for an ATS claim to go forward.

This Essay argues that courts should not allow the use of evidence of First Amendment-protected petitioning to support a claim for which the ATS provides jurisdiction. Courts can accomplish this shift by extending the Noerr-Pennington doctrine, originally developed in antitrust law. Despite the potential to restrict a remedy for serious human rights abuses, this proposed doctrinal shift will safeguard constitutionally protected activity, keep faith with the Supreme Court’s command that the scope of ATS claims be kept narrow, and help police the Supreme Court’s recent announcement that the ATS doesn’t give rise to liability for extraterritorial conduct.

Marriage Equality and the Third Nail in the “Proceed with Caution” Coffin

Ryan H. Nelson

“We must proceed with caution” remains a clarion call of marriage equality opponents. Courts have previously rejected this argument on two grounds: First, states cannot save an otherwise unconstitutional law by raising the specter of theoretical harms that may run rampant if the law were struck down. And second, such harms are inapplicable in the context of same-sex marriage bans because there is no harm caused by allowing same-sex couples to wed. A number of jurists, most notably Justices Alito and Thomas, nonetheless embrace the “proceed with caution” argument.

To that end, this Essay explains a third reason why the “proceed with caution” argument should fail when the Supreme Court takes up the issue of marriage equality this spring; specifically, a state should not be allowed to proceed with caution unless it explains how it plans on doing so. The states defending their same-sex marriage bans before the Court this spring—Kentucky, Michigan, Ohio, and Tennessee—have failed to identify how they plan to proceed with caution. They offer no plans, timetables, or rubrics by which they intend on analyzing the effects of same-sex marriage elsewhere, extrapolating those effects to their states, and taking action as warranted. As these states have presented no such evidence, the Court should reject the “proceed with caution” argument they advance.

Striving for Herd Immunity

Andrew Janet

This Comment argues in favor of large-scale reform that would make it much more difficult to avoid immunizing children. Part I provides background on the sources of this problem and contends that there is an extremely strong state interest in eradicating diseases to which the countervailing individual interest in pursuing an adherence to junk science should pale in comparison. Part II argues that the state exemptions for religious and personal beliefs are both unnecessary and, again, misguided given the strong state interest in eradicating diseases. Part III explores the possibility of universal state-level or federal-level mandates for vaccination. The country has allowed the destructive impact of Jenny-McCarthyism to run rampant for far too long.

Andrew Janet, Striving for Herd Immunity, 90 N.Y.U. L. Rev. Online 1 (2015).