Balkinization: Lawless and Cruel: The HHS Abortion Scandal That's Flying Under the Radar

Lawless and Cruel: The HHS Abortion Scandal That's Flying Under the Radar

Marty Lederman

[UPDATED on Dec. 22 to account for filing of Deputy Director memo.]

So many horrifying things are happening every day (see, for example, Jack’s must-read post on the tax bill) that it has become difficult to keep track of, or even to appreciate, every such development. This is one such case that has escaped much attention--it involves remarkable cruelty and lawlessness, against very vulnerable minors in the custody of the government, committed by a zealous official at the Department of Health and Human Services, and, distressingly, abetted by the Department of Justice, which ought to be putting a stop to the conduct.

As we just learned, the HHS official in question even asserted the authority to decide it is in the best interest of a 17-year-old rape victim to carry her pregnancy to term--and to physically restrain her from exercising her own judgment to the contrary--where that victim was 23 weeks pregnant (in a state where abortion is only lawful until 24 weeks); where the abortion would be lawful without any parental or judicial involvement; where she had expressed a desire to kill herself rather than to bear the child; and where Congress had, in the Hyde Amendment, actually provided that the federal government could subsidize the abortion because the pregnancy was the result of a rape. Even in those circumstances, the Director of the agency purported to exercise an authority, not found in any law, to physically restrain the minor from obtaining the abortion, based upon his own assessment that it would be better for the minor to continue the pregnancy because, in his considered view, it is "perhaps likely . . . that this young woman would go on to experience an abortion as an additional trauma on top of the trauma she experiences as a result of her sexual assault," because the abortion would not "undo or erase the memory of the violence committed against her," and because the notion that "it is possible to cure violence with further violence, and that the destruction of an unborn child’s life can in some instances be acceptable as a means to an end," is "dubious," even if the young woman in question does not appreciate it.

(Apologies in advance -- because I wanted to get this out quickly after the memo was released, it's rougher than my usual fare, and perhaps somewhat less dispassionate. Then again, one doesn't encounter government memos and briefs such as these every day.)

As I've previously explained, HHS's Office of Refugee Resettlement (ORR) instructed the government contractor "shelters" housing two unaccompanied, immigrant teenage girls--Jane Poe and Jane Roe--not to permit the girls to obtain the abortions they were seeking, i.e., to forcibly restrain them from leaving the shelters to travel to clinics for the procedures.

On Monday evening, Judge Tanya Chutkan issued an injunction requiring ORR to allow the girls to be transported to clinics to obtain abortions, and prohibiting ORR officials "from interfering with or obstructing J.R.’s and J.P.’s access to abortion counseling or an abortion." She issued that injunction over the Department of Justice's objection that the government's "strong" interests in "promoting . . . life" and refusing to "facilitate" abortions would be "irreparably undercut" if the girls had their abortions.

1.  The Absurdity of the "We Don't Want to Affirmatively Facilitate Abortions" Argument.

That same evening, DOJ sought a stay of the injunction as to Roe (but not as to Poe) in both the court of appeals and the U.S. Supreme Court. The Solicitor General of the United States represented to the Supreme Court that Judge Chutkan had "ordered the government to immediately facilitate an elective abortion"--even though, as I have explained repeatedly (and as I'll explain again below), the order obviously did no such thing--and that the government's "significant interest in ensuring that it does not affirmatively facilitate an abortion" would be "completely extinguished," and the government would thus suffer a "direct, irreparable injury," if the courts did not stay the injunction.

The SG's brief itself, on its very face, belied this absurd "facilitation" claim in two different ways: First, the brief acknowledged that the government was not asking for a stay of the injunction as applied to one of the two girls, Jane Poe--and thus ORR was allowing Poe to obtain her abortion. (Judge Chutkan lifted her stay as to Poe the next morning, and she has since received the care she was seeking.) Presumably it was not the SG's view that HHS "affirmatively facilitated" Poe's abortion--or, in the unlikely event that was the SG's view, he did not explain why the failure to challenge the injunction as applied to Poe did not result in the sort of "direct, irreparable injury" to the United States that cried out for the type of extraordinary, expedited relief he was seeking as to that same injunction's application to Jane Roe.

Second, a central theme of the SG's brief was that there was no "undue burden" on Roe because there was a chance that HHS might transfer her to the custody of a "sponsor" within two weeks, at which time she could obtain her abortion. The SG did not explain why ORR’s transfer of Roe to a sponsor’s custody—and its subsequent failure to do anything to prevent that sponsor from taking Roe to the clinic for the abortion—would not "facilitate" her abortion in the same way that allowing the shelter to temporarily transfer her to the custody of a guardian to transport her to the clinic would not.  (Indeed, as Judge Millett explained in the case of an earlier, analogous minor, transferring the minor to a sponsor would, if anything, require far more use of governmental resources than the shelter's simple transfer of the minor to the custody of private parties who would assist her in obtaining her abortion.)  The remedy the SG was seeking, in other words--a pause in the proceedings so that Roe might be transferred to a sponsor's custody before obtaining her abortion--belied the “affirmative facilitation” claim upon which his argument depended.

Then, late Tuesday night, the government did something that further confirmed the absurdity of the SG's "facilitation" argument. HHS discovered that Jane Doe was 19 years old, not 17, which would mean that ORR no longer had the authority to hold her. "We understand," wrote DOJ, "that U.S. Immigration and Customs Enforcement (ICE), a component of the U.S. Department of Homeland Security (DHS), will imminently take custody of Jane Roe and, upon transfer, intends to process her for release on her own recognizance." A couple of hours later, DOJ informed the panel that that transfer had occurred--that Roe "has been transferred from [ORR to ICE]," and that "ICE in turn has released Jane Roe on her own recognizance," thereby permitting her, too, to obtain the abortion she was seeking. DOJ therefore dismissed the appeal. (The SG sent a letter to the Supreme Court to the same effect.)

DOJ did not explain, to any court, why ICE was not thereby "facilitating" Roe's abortion in a manner that implicated the government's purported "significant interest." That is to say: If it was not "affirmative facilitation" when ICE permitted Roe to have her abortion, why in heaven's name would it have been "affirmative facilitation" for HHS to do the same? The SG, and DOJ, did not say. (Indeed, back on October 20, at the oral argument in the case of a different minor, Judge Kavanaugh asked this very question of the DOJ lawyer, who understandably had no response.)

In his 21-page brief to the Supreme Court, the SG invoked the notion that the district court was requiring HHS to "affirmatively facilitate" an abortion no fewer than 18 times. It is an embarrassing argument, and not only for the reasons explained above, concerning how the SG's brief and the government's own actions this week directly undermined it. It suffers from at least two additional flaws, as well.

First, the SG invoked cases, such as Harris v. McRae and Webster v. Reproductive Health Services, in which the Court held that the Constitution does not require the government to subsidize abortions, or to have its own employees perform abortions in government facilities.  Nothing of the sort was at stake here, however. As Judge Millett wrote with respect to the “verbal alchemy” in DOJ's mantra of "affirmative facilitation":

The government need not pay for [the minor’s] abortion; she has that covered (with the assistance of her guardian ad litem). The government need not transport her at any stage of the process; [she] and her guardian ad litem have arranged for that. Government officials themselves do not even have to do any paperwork or undertake any other administrative measures. The contractor detaining [the minor] has advised that it is willing to handle any necessary logistics, just as it would for medical appointments if [she] were to continue her pregnancy. The government also admitted at oral argument that, in light of the district court’s order, the Department of Health and Human Services does not even need to complete its own self-created internal “best interests” form. See Oral Arg. 31:40-33:15.

The SG cited two other "affirmative" things that the injunction allegedly would have required HHS officials to do: (i) draft and execute "approval documents" telling the shelters that they could permit the minors to obtain the abortions; and (ii) "expend resources to monitor the minor's health immediately after the abortion." As to the latter, I think (I hope!) all would agree it is preposterous to suggest that such post-operative medical monitoring, which presumably is provided for all persons in the government’s custody or in the custody of its contractors, whether their operation was for an abortion or not, is a form of “facilitating” the abortion. In any event, as Judge Millett also explained, the post-procedure medical care would also "be administered by the contractor, not by government officials themselves.” (See also p.34 of the Oct. 20 D.C. Circuit oral argument transcript (DOJ lawyer for ORR conceding that "the shelter has to monitor her health and take her for any follow up appointments").

That leaves only the requirement that the ORR Director execute the "approval" document, which informs the shelter that it must permit the minor to travel to the clinic for the abortion. That "requirement," however, is not something that Judge Chutkan, or the Constitution, insisted upon. Nothing in the law forbids the shelter from deciding, on its own, to allow the minor to exercise her rights. [UPDATE: Indeed, as the DOJ lawyer acknowledged at oral argument before the court of appeals on October 20 (see pp. 80-81), such approval from the Director is unnecessary, because shelters abide by the court's injunctions, anyway.] The Director's "approval" document is only necessary, if at all, because ORR has told shelters that they must await such Director approval before permitting a minor to obtain an abortion. If ORR considers transmission of that document to be "facilitation" of the abortion, it can simply stop insisting that shelters await such approval before permitting minors to obtain abortions. In any event, even if the judge had required the ORR Director to tell the shelter that it was unlawful to restrain the minor, surely that sort of notice of what the law forbids would not be a form of "affirmative facilitation" of the abortion itself.

In sum, then, the injunction merely forbade ORR officials from taking steps to have Poe and Roe physically restrained from receiving medical care. Standing aside, and declining for a few hours to hold a human in custody, surely is not a form of "affirmative facilitation," and, more to the point, is entirely dissimilar to the forms of assistance -- e.g., financing, or the use of government personnel to perform the operation -- that the Supreme Court has said the state need not provide.

And once it is understood that the injunction did not require any such form of affirmative facilitation, the government's constitutional case collapses. The alleged desire not to "affirmatively facilitate" abortions is virtually the only state interest the SG cited in support of the abortion restrictions at issue. Once it is clear--as it ought to be--that allowing a minor at a shelter to seek an abortion, at her own expense, does not implicate that interest, there is no government interest supporting the constraints on the minors. Therefore the burdens ORR places on their right to obtain abortions is, by definition, "undue," and therefore unconstitutional.

But that is not all . . . .

The second huge hole in the "facilitation" argument is something that's been overlooked in all the constitutional analysis of this case--namely, that the ORR Director lacks any statutory authority to implement his "no abortion facilitation" directive.

To fully appreciate this fundamental flaw in the government's argument, it's necessary to identify just what it is that the injunction was prohibiting the ORR Director from doing: It forbade him from directing the shelters not to allow minors to travel to clinics to obtain abortions. In late March, just after he took office as ORR Director, Scott Lloyd instructed his staff that shelters "should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling." (This directive did not, by its terms, foreclose the possibility that Lloyd himself might approve allowing a minor to obtain an abortion in a particular case; as we shall see, however, that's not something he would do, even in the most compelling of circumstances.)

Lloyd's directive, however--his insistence that shelters send minors to receive the euphemistic "life-affirming options counseling," and constrain them from obtaining abortions--is simply not within the Director's statutory authority; indeed, it's in fundamental conflict with the reasons Congress gave ORR the responsibility for these unaccompanied minors in the first instance.

When Congress created the Department of Homeland Security in 2003, it deliberately transferred responsibility for the care and placement of unaccompanied alien children from the Immigration and Naturalization Service to HHS. Why did it do so? Because it naturally assumed that HHS, as opposed to an immigration enforcement agency, would be the agency better situated—in the words of ORR itself—“to help[] new populations maximize their potential in the United States by linking them to critical resources that assist them in becoming integrated members of American society.” ORR explains that its mandate is to “promptly place[] an unaccompanied child in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight." (That language derives from 8 U.S.C. 1232(c)(2)(A) and 6 U.S.C. 279(b)(1)(B).) ORR "takes into consideration the unique nature of each child’s situation and incorporates child welfare principles when making placement, clinical, case management, and release decisions that are in the best interest of the child.”

So, for example, ORR requires shelters to transport their charges to “[l]ocal services and appointments, such as medical and dental appointments, immigration court hearings, or community services as part of the individual service plan.” And it has “developed its health care policies with the goals of ensuring the children’s physical and mental well-being and the safety of care providers, medical personnel and communities.” In order to “ensure quality care,” ORR requires “licensed medical practitioners (physicians, physician assistants, nurse practitioners) acting within their scope of practice to provide or supervise all medical evaluation and management.”

To be sure, Congress has imposed one limitation when it comes to abortion--a limitation not confined to the ORR program for unaccompanied minors, but extending instead to virtually all federal funding. The Hyde Amendment provides that appropriated funds may not be "expended for any abortion," except in limited circumstances, including where "the pregnancy is the result of an act of rape or incest." (By its terms, the Hyde Amendment does not prohibit "the expenditure by a State, locality, entity, or private person of State, local, or private funds (other than a State's or locality's contribution of Medicaid matching funds).")

The Hyde Amendment is not implicated in these recent cases: No one is insisting that ORR use federal funds for the abortions themselves; only "private funds" are at issue.

Accordingly, ORR's recent, additional restrictions on the ability of shelter residents to use their own funds to obtain abortions are not only statutorily unauthorized; they are also, at a minimum, in deep tension with the statutory mandate that ORR place a minor in the least restrictive setting that is in the best interests of the child, and with ORR's own guarantee that its policies "incorporate child welfare principles" with the goal of "ensuring the children’s physical and mental well-being." [UPDATE: Moreover, such restrictions would appear to be flatly contrary to ORR's own directive to shelters that they "must provide . . . for each unaccompanied alien child in their care . . . access to medical reproductive health services" (see Section 3.3). And, assuming that the shelters in question entered into standard agreements with ORR, those agreements further provide that "[t]he grantees will refer female [unaccompanied immigrant minors] to medical care providers who offer pregnant [unaccompanied immigrant minors] . . . the opportunity to be provided information and counseling regarding prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination.”]

It would be one thing if Congress had made an informed determination, in a statute, that federal agencies should prevent those in its custody from obtaining abortions. That would almost certainly be unconstitutional--but at least it would represent a legislative judgment. Congress did no such thing, however.  The idea that Congress afforded HHS--but not ICE--authority to prevent those in its custody from obtaining abortions, when those abortions would be in conformity with state law--is a non-starter. What we have here, in other words, is simply a rogue OMM Director acting according to his own policy preferences -- not pursuant to the authority that Congress has conferred upon him, and in conflict with ORR's own directives and with Congress's requirements.

Which brings us to today's shocking revelation about what is actually going on over at ORR . . . .

2.  "We Know Better Than the Women Themselves that Taking Their Pregnancies to Term is in Their Own Best Interests (Even in the Case of Rape)"

On Monday, the government filed, under seal, the ORR Director's "Decision . . . for Jane Poe"--his explanation of why he refused to permit Poe, who was 22 weeks pregnant, and whose pregnancy was the result of a rape, to leave her shelter for a short period in order to obtain an abortion. At noon today, the Director's memo was unsealed. It starkly reveals that what DOJ represented to the district court on Monday is true: DOJ and ORR construe Congress's directive that the Director "ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child," 6 U.S.C. 279(b)(1)(B), to mean that the Director, rather than the minor herself, has the ultimate authority to decide whether it would be in the "best interest" of a minor to obtain an abortion.

Back in October, in the "Jane Doe" case involving another minor, Judge Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit wrote that the government had “expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks authority to block Jane Doe from obtaining an abortion.”  We now know that that is not, in fact, the government’s position, if it ever was:  ORR now boldly claims that it had the authority to block a minor's abortion—permanently—because its Director knows better than she does whether it is in her best interests to carry the pregnancy to term, even when that pregnancy was the result of a rape.

Obviously, Congress has not afforded the Director any such authority: As Judge Chutkan noted at the hearing this past Monday, a state could not constitutionally afford even the minor’s parent such an unqualified power to override a daughter’s determination of whether an abortion is in her best interests. And the Hyde Amendment itself further reflects a congressional judgment that cases of rape are different: It permits federal funds to be used for an abortion resulting from rape. Therefore the notion that Congress has conferred—and constitutionally could confer--authority upon the ORR Director to override the constitutionally protected choice of a young woman, even in the case of rape, is simply implausible.

It is noteworthy that the Solicitor General did not make any such "best interests of the pregnant child" argument in his filing to the Supreme Court on Monday. Nor did he seek a stay of the injunction with respect to Jane Poe's abortion. Now that we've seen Scott Lloyd's memo concerning Poe, it is not hard to understand why the SG decided to forego these steps.

I can't possibly do the Lloyd memo justice by summarizing it; it speaks for itself more clearly than any description could. Here it is, omitting only some incidental details in footnotes:

NOTE TO FILE

December 17, 2017

Scott Lloyd, Director

Background

We have in our custody an unaccompanied alien child (UAC) who is ___ years old and who reported that she was sexually assaulted in her home country. Based on the timeframe she provided for the sexual assault, we have reason to believe that this assault resulted in her current pregnancy. While she also reported that she had a boyfriend in her home country with whom she had intercourse, the UAC also now believes she is pregnant with the child of her attacker.

Several weeks after the assault, she made the journey to the United States where she attempted to cross the border illegally, but was apprehended at the border, and is now in our care. She originally requested an abortion upon confirmation that she was pregnant, but rescinded the request after she reported that her mother, and the ___ who was to serve as her sponsor, threatened to “beat” her if she did so. She renewed her request after a few days, although language difficulties and other circumstances made it unclear that she knew what she was requesting. She has had an information session that imparted information about fetal development and the abortion procedure she requests, and we can now say with a reasonable amount of certainty that she has an understanding of both. She still desires an abortion, and has on at least one occasion threatened to harm herself if she does not obtain it. Shelter staff has taken appropriate measures to mitigate that risk, and she has since made at least one statement denying that she is a threat to herself. There is no indication that the pregnancy threatens her physical health in any way.

At nearly 22 weeks, the child has at least a fighting chance at survival if born. [See, e.g., Jacqueline Howard, Born Before 22 Weeks ‘Most Premature Baby’ is Now Thriving, CNN.COM at http://www.cnn.com/2017/11/08/health/premature-baby-21-weeks-survivor-profile/index.html.] The most likely method of abortion in this instance is Dilation and Evacuation abortion. [quotation from the majority opinion in Gonzales v. Carhart, describing procedure.] This particular form of abortion is one that even many abortionists find troublesome. [Three citations to newspaper articles reporting some physicians' views.] [Dr. Lisa Harris, an abortionist and Assistant Professor in the Departments of Obstetrics and Gynecology and Women’s Studies at the University of Michigan, captured well the human dimension of performing late-term abortions in a piece she wrote in 2008. After describing the phenomenon of aborting an 18week-old fetus while she was 18 weeks pregnant herself, admits that “there is violence in abortion, especially in second trimester procedures. Certain moments make this particularly apparent.” She goes on to describe aborting a 23 week-old fetus on one floor, and then rushing to the aid of a baby born prematurely at 23 weeks, and puzzling over how it was legal for her to kill the first, but it would be a crime to kill the second. See, Lisa H. Harris, “Second Trimester Abortion Provision: Breaking the Silence and Changing the Discourse,” 16 Reproductive Health Matters, 74-81 (2008).]

To obtain the abortion, program staff would have to accompany her before, during, and after the procedure, as our statutory authorities forbid us from releasing a UAC on her own recognizance.

At least one senior program staff person recommends that the program assist her in obtaining the abortion. The program awaits my authorization for this assistance to occur, which I have denied in a separate document. I am convinced that assisting with an abortion in this case is not in her best interest.

Analysis

Sexual assault is among the gravest offenses in the catalogue of offenses man can commit against his fellow man, or in this case, a teenaged young woman. Every compassionate society, including our own, seeks to provide protection against such brutality, to prosecute it vigorously, and to provide aid and comfort to its victims. The UAC program has no prosecutorial authority, but is very strong both in protecting UACs from rape and also providing comfort to those who have the tragic misfortune of experiencing such an offense against their person and their dignity.

Over and above the trauma of the assault itself, a pregnancy that results from a rape is itself a continuous reminder of the attack. Women who experience pregnancy from rape must wrestle with the phenomenon of being the mother of a child whose other parent brutally terrorized and did violence to her. Certainly, it is understandable that a woman who is pregnant from the vile actions of a criminal would want to terminate her pregnancy. I do not, and am in no position to, judge anyone who has taken such an action or supported another in doing so.

But I cannot authorize our program to participate in the abortion requested here, even in this most difficult case. Here, where the pregnancy is advanced to such a late stage, we have in stark relief the reality that abortion entails, as Dr. Harris candidly admitted, violence that has the ultimate destruction of another human being as its goal.

Even supposing it was possible to justify abortion in this context, abortion does not here cure the reality that she is the victim of an assault. It also carries with it significant risk of further complicating the matter. It is possible, and perhaps likely, that this young woman would go on to experience an abortion as an additional trauma on top of the trauma she experiences as a result of her sexual assault. Although formal research on this matter appears to be sparse, those who have worked with women who have experienced abortion have compiled a catalogue of anecdotal evidence, impossible to ignore, that shows that many women go on to experience it as a devastating trauma, even in the instance of rape. [See, e.g., Gonzales, 550 U.S. at 159 (“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”); See also, Hope After Abortion, at http://hopeafterabortion.com. (Brenda’s Story: “Nothing was touching it — nothing was helping me put down the bottle and take control of my life. I sought mental health treatment for the trauma I experienced around the rape and the abortion, but I was still suffering, and I was still drinking. It constantly weighed on my mind that I was in a state of mortal sin — I had killed my baby.” (Georgia’s Story: “I was pregnant from a date rape…. Before I had time to think about what I wanted, the abortion was over…Not a day goes by that the abortion doesn’t cross my mind. It is a constant struggle trying to overcome my guilt and depression, even knowing I have been forgiven. I dread the day when I have to come face to face with my little child and explain to her why mamma took her life. But I also think I am a softer, more caring person than I might have been.”)] If the young woman was to go on to regret her abortion and experience it as a trauma, ORR will have had a hand in causing that trauma, and I am unwilling to put this young woman or ORR in that position.

I am mindful that abortion is offered by some as a solution to a rape. In fact, some would suggest that, by declining to assist in the abortion we are in some way engaging in a form of violence against the mother, as in the notion that ORR is forcing her to carry her pregnancy to term.

I disagree. Implicit here are the dubious notions that it is possible to cure violence with further violence, and that the destruction of an unborn child’s life can in some instances be acceptable as a means to an end. To decline to assist in an abortion here is to decline to participate in violence against an innocent life. She remains pregnant, but this is not the intent of our actions. Moral and criminal responsibility for the pregnancy lies with the attacker, and no one else.

Others might suggest that abortion is justified as a form of self-defense in this instance, but this gets it wrong again. The child—the one who is destroyed—is not an aggressor. The aggressor, again, was the rapist.

At bottom, this is a question of what is in the interest of the young woman and her child. How could abortion be in their best interest where other options are available, and where the child might even survive outside the womb at this stage of pregnancy? Here there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her, and it may further traumatize her. I conclude it is not her interest.

Regarding any further legal questions, I defer to the various attorneys representing our position in this and related litigation that this is a legally permissible path. There is nothing in the law or in the Constitution that requires this program to participate in providing abortion for UAC, and the Department of Justice has argued that ORR does not impose an undue burden by declining to authorize abortions that are not medically indicated.

Conclusion

The Office of Refugee Resettlement serves a large number of persons who have experienced some sort of violence. Refuge is the basis of our name and is at the core of what we provide, and we provide this to all the minors in our care, including their unborn children, every day. In this request, we are being asked to participate in killing a human being in our care. I cannot direct the program to proceed in this manner. We cannot be a place of refuge while we are at the same time a place of violence. We have to choose, and we ought to choose protect life rather than to destroy it.

I am hardly surprised that, having seen this memo, the SG refused to appeal the injunction that allowed Jane Poe to obtain an abortion. What's much more surprising, and frankly disheartening, is that the SG and DOJ continue to defend the utterly lawless policy that ORR--but not DHS--is insisting upon continuing to implement. DOJ lawyers should have told HHS right at the outset that there was no statutory authority for what ORR is doing here--wholly apart from the constitutional question.

The class action aspect of the litigation, seeking to bring a halt to the ORR restrictions, now continues apace before Judge Chutkan. Let's hope that the government abandons this cruel, unauthorized and unconstitutional policy soon. If it does not, it will fall to the courts--Judge Chutkan, in the first instance--to explain that Congress has not authorized that practice, and that the Constitution forbids it.

Posted 1:36 PM by Marty Lederman [link]