Prof. Anil Kalhan on U.S. v. Texas

Prof. Anil Kalhan (Drexel University, Thomas R. Kline School of Law), has written two fascinating and important pieces on the immigration case now pending at the Supreme Court:

Ending Judicial Truthiness on Immigration - "When the Supreme Court considers what it hears this week in United States v. Texas - the Republican lawsuit challenging the Obama administration’s immigration initiatives - the justices should start by getting the basic facts right, which is something that both the administration’s political opponents and lower court judges have scrupulously failed to do. While their attacks have been framed in a variety of ways, Obama’s critics essentially accuse the President of unlawfully imposing by decree precisely that which Congress has declined to authorize by statute: legalization of noncitizens who lack lawful immigration status. In reality, the administration’s efforts do no such thing. ... The case illustrates a broader peril in politically charged cases, in which contemporary norms of political discourse can overwhelm and displace traditional norms of judicial fact-finding and reasoned decision-making. Especially when the chasms between rhetoric and reality are as wide as they are here, the judiciary’s credibility and independence suffer when judges appear to embark on politicized quests for truthiness drawing so directly from partisan politics. In a 2014 speech to the American Bar Association, Chief Justice John Roberts emphasized the importance of those traditional norms of adjudication in promoting public confidence in government in an era of deep partisan division. By rejecting the truthiness that has infected this case, the Supreme Court can send a strong message affirming that idea, signaling that litigation should not become merely another arena for partisan disputes and modes of contention better left in the political process."

The Strange Career of United States v. Texas - "Here, I want to leave the substantive merits of these arguments to one side to some extent, and instead to highlight just how far the arguments that the plaintiffs now raise in the Supreme Court diverge from those that they originally made when they steered their lawsuit to U.S. District Judge Andrew Hanen in the Southern District of Texas in the first place. It is somewhat strange that any of us are talking about “lawful presence,” eligibility to apply for employment authorization, and some of the other issues that the plaintiffs now aggressively foreground before the Supreme Court at all—because for the very most part, the plaintiffs did not make any of those arguments in the district court. How did this lawsuit morph into what it has now become?"