Tuesday, August 06, 2013

Legal Scholarship (2) -- In Public Venues

Mark Tushnet

I had thought of calling this post "In the Weeds." A week or so ago I was listing to CSPAN radio's rebroadcast if the Sunday talk shows (I know, I know, but I was in the car and the alternatives were less attractive), and a Republican member of Congress was going on about the Obama administration's lawlessness. He was about to describe then-pending litigation in Texas (I believe) challenging the administration's decision to suspend deportation of "DREAM Act" undocumented immigrants. Wallace, anticipating some lowering of the intensity, told the member, "Don't get into the weeds about the case." (I believe that the litigation has recently been dismissed, though on what sounded to me like standing grounds, the judge not withdrawing from his prior comments indicating that in his view the policy was unlawful.)

Then, on a discussion list someone posted something suggesting that the Obama administration was asserting an executive dispensing power -- that is, a prerogative to disregard enacted law -- in deferring the employer requirements under the Affordable Care Act.

Now, unfortunately, it turns out that to understand the law on these -- and many other issues -- you really do have to get down into the weeds. On the DREAM Act issue, for example, you have to know about the "Morton memos," which set out enforcement priorities for immigration officers, and are justified on the ground that the agency doesn't have enough resources to deport more than some relatively low number of people (low relative to those who, by law, are eligible for deportation) each year. So the agency has to set enforcement priorities. Now, maybe the DREAM Act policy doesn't really mean only that DREAMers should be the last on the priority list, but is a firm directive against deporting them. (Imagine an immigration agent in, say, North Dakota -- I'm making this up -- who runs across only one deportable person, and that person turns out to be a DREAMer.) But, the argument against the administration policy, is, as a matter of law, necessarily a complicated one -- it involves getting down in the weeds. Similarly, on the employer mandate stuff, the Administration actually relied on a statute giving the IRS authority to adopt transition relief, coupled with long-standing administrative practice.

My kids tell me that they're going to put "It's complicated" on my gravestone. Law is complicated, and figuring out how to explain its complexity to the public is difficult. But trying to stay out of the weeds is a prescription for misleading the public. 

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