This week’s episode of Parsing Immigration Policy examines two recent immigration-related Supreme Court opinions and delves into the implications of those rulings for immigration law enforcement, public safety, and the role of Congress in shaping immigration policy.

Andrew Arthur, the Center’s fellow in law and policy, and Hans von Spakovsky, senior legal fellow at the Heritage Foundation, start the discussion with an analysis of U.S. v. Texas. In Texas, the Court held that the states of Texas and Louisiana lacked standing to challenge the immigration-enforcement “guidelines”, issued by DHS Secretary Alejandro, that limit ICE officers ability to detain criminal aliens. Notably, the majority did not even review the district and circuit court findings that Mayorkas’ guidelines would mean more criminal aliens would be released onto the streets, imposing significant costs on the states.

Environmental Panic Over the Protection of Wetlands


This past week, in Sackett v. EPA, the United States Supreme Court unanimously brought to an end the nonstop siege that the Environmental Protection Agency (EPA) imposed on Michael and Chantell Sackett during their 19-year quest to build a single-family home on a building plot some 300 yards from Priest Lake, a navigable body of water, with a number of homes between their lot and the lake itself. The EPA asserted jurisdiction over the Sacketts’ land and threatened them with fines of over $40,000 a day. In 2012, the Supreme Court refused to allow those excessive fines to block a lawsuit but left matters in limbo by returning the case to the lower courts. In the second round of litigation, all nine justices agreed that the EPA had gone one step, if not many steps, too far. But none of them sought to explain where or why the EPA was wrong.  Instead, sharp divisions emerged in the Court on the question of just how much was too far. The key provision of the Clean Water Act (CWA) reads: “(7) The term ‘navigable waters’ means the waters of the United States, including the territorial seas,” such that a wetland, however defined, bears no similarity to the large bodies of water that are “in direct contact with the open sea.” As the justices saw the case, the key question was how best to interpret the term “adjacent,” which does not appear in the statutory definition.

So, why has the Supreme Court sharply divided over the terminological dispute of whether the word adjacent means “abutting on” or “nearby”? The answer is that this term makes its appearance only once in the statute, in Section 1344(g)(1), which authorizes the states to conduct their own permitting programs. It is from this section that Justice Alito, writing for the Court’s majority, concludes that the “statutory context” “specifies that discharges may be permitted into any waters of the United States, except for traditional navigable waters ‘including wetlands adjacent thereto,’” suggesting that at least some wetlands must necessarily qualify “as waters of the United States.”

Reining in the Administrative State?


This past week, the Supreme Court agreed to hear Loper Bright Enterprises v. Raimondo, a case that could curtail the extensive reach of the modern administrative state. Loper arose under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (MSA), which provides for the United States to enforce a comprehensive system of regulation to protect American fisheries from many perils, including the chronic danger of overfishing. It is agreed on all sides that herring boats (usually family-owned) must at their own expense make room on their cramped quarters for a government inspector on most of their extended fishing trips. But when its budget crunch hit, the agency decided to double-down by requiring boat owners to pay for their inspectors as well, which at over $700 per day could eat as much as 20 percent of the profit of any expedition. The MSA contained provisions that allowed the National Marine Fisheries Service (NMFS)  to take “necessary and appropriate measures for the conservation of the fisheries,” but it did not contain any provision explicitly authorizing the kind of financial exactions that the NMFS unilaterally imposed.

The District Court held the MSA’s general statutory provision quoted above to be broad enough to authorize these expenditures. On appeal, the DC Circuit declined to follow that ruling, largely on the ground that the MSA also contained specific provisions that authorized such charges to be imposed solely on fishing boats in the North Pacific and those operated by foreign nations. Accordingly, Judge Judith Rogers for herself and Chief Judge Sri Srinivasan found sufficient tension between the general broad authorization and the specific cases where the MSA authorized fees to conclude that the statute contained a genuine ambiguity. At this point, they invoked the most influential administrative law case ever decided, Chevron v. NRDC (1984), which prescribes a two-part test to determine whether an agency’s interpretation of a statute is to be upheld. If a statute is clear, follow it to the letter. But if it is ambiguous, then allow the administrative agency to capitalize on its expertise to resolve the impasse. Judge Justin Walker, in dissent, argued that the statute unambiguously barred the exaction because the burden of proof was always on the government to find the explicit statutory authorization, not for the regulated party to negate that inference.

What is to be done? Issues like this arise all the time, and I think that in light of the full record, the dissenting view will probably prevail in the Supreme Court. Matters of raising revenue have a distinct constitutional pedigree insofar as they must normally be approved under Article I, Section 7 by legislation starting in the House of Representatives. In this instance, the DC Circuit’s majority position in Loper states no limiting principle of the agencies’ delegated power over the purse. If the NMFS could charge fishing boat owners fees when the government budget falls short, could it charge such fees all the time? And if it could do that, why could it not enlarge those fees so that they cover not only the cost of crews but some portion of the general overhead of the NMFS allocated to running the inspection program? Any such program looks like a crude circumvention of congressional powers.

Hypocritic Oath of the Senate


Imagine that deep in the bowels of the Senate building, a group of Democrat Senators has ensconced itself quietly around a well-worn, chipped oak table. They speak in whispers, even though they are certain that no one can hear them. And they pledge themselves by a “hypocritic” oath that they will do everything in their power to discredit, disempower and defame the Supreme Court of the United States. Quiet snickers ensue, as someone mutters that they are fortunate no one is studying their ethical records. They stand up, scraping their chairs across the hardwood floor. There are no friendly good-byes as they leave, only the clearing of throats and downcast eyes.

At some level, they know that the Supreme Court Justices are not the people who are threatening our democracy.

The hypocrisy of the Democrat Senators to stand in judgment of the conservative members of the Supreme Court is ludicrous. Questionable if not outright illegal activities by some Senators, including Dick Durbin, head of the Judiciary Committee, Sheldon Whitehouse, Dianne Feinstein, Richard Blumenthal are ignored. In fact, there have been no disciplinary sanctions from the Senate Select Committee on Ethics since 2007. Senators lack any credibility to sit in judgment of the Supreme Court.

Justice Alito Knows Who the Leaker is, and He’s Angry


I’m extremely disappointed about the conclusion of the investigation regarding the leak of Justice Samuel Alito’s draft opinion on Roe v. Wade. And it’s clear that Alito is very angry, too, and I believe he has a right to be. This decision cannot stand, shouldn’t stand, and I think the justice is endeavoring to make sure it doesn’t. Let’s look at the reasons, and why I think this investigation is not over.

Alito has revealed his opinion that he knows who the leaker is at this particular time. He gave the marshal’s investigation time to conclude, and after nine months, I think he believes she was not properly prepared to conduct this investigation. He says:

A Welcome Rebuke to the Administrative State


A unanimous Supreme Court has continued its assault on the modern administrative state in its landmark decision in Axon Enterprise, Inc. v. Federal Trade Commission, which also decided Securities and Exchange Commission v. Cochran. The cases arose out of enforcement actions the FTC and SEC, respectively, brought against two private parties. In Axon, the FTC not only blocked a proposed acquisition but also insisted that Axon supply its target with intellectual property for free. In Cochran, the SEC sought to punish Michelle Cochran, a certified public accountant, for minuscule technical violations of the securities law, but only after she quit her accounting job to protest her boss’s shady business practices.

Federal law lets both federal disputes be decided in federal district court. Nonetheless,  both FTC and SEC law allows them to be tried before administrative law judges (ALJs) appointed by the agencies’ respective commissions to resolve the matters. Once an initial hearing is concluded with an ALJ, the individual party can appeal the charging decision to the same commission that brought the original charges. Only after the entire agency proceeding is over may the defendant, now burdened with years of expensive litigation, seek relief from a federal district court on the ground that the agency had no jurisdiction to hear the matter that had just been heard. To avoid that grim fate, both defendants went straight to district court, only to be told that the statutes’ provision of “administrative review followed by judicial review in a federal court of appeals” “implicitly divested” the federal courts’ jurisdiction to intervene at the beginning of the process.

A moment’s reflection should indicate that both the FTC and SEC schemes are seriously misguided. It is no state secret that both agencies have a long track record of turning screws on ordinary individuals through partisan ALJs long before they have a chance to appear before an independent forum. One of the most notorious illustrations of this is Lucia v. SEC, which held that the SEC could pick its own favorite judge before any appeal could be brought in federal court. Hence the immediate march into federal court by Axon and Ms. Cochran.

Restoring Safety Protocols and Accountability at FDA


Demonstrating the old maxim that sunlight is the best disinfectant, the case of AHM v. FDA is bringing to light twin threats to the health of America’s body politic – unaccountable federal agencies and disrespect for the rule of law.

Over two decades ago, the FDA abandoned its mission of protecting the health and safety of Americans in favor of pushing a political agenda. The results of the FDA’s lawlessness have compounded the tragedy of the loss of life by chemical abortion with serious harm to the women and girls taking these drugs. Now, members of Congress from both parties, Nancy Mace (R) and Alexandria Ocasio-Cortez (D), are compounding the executive branch agency’s flagrant disdain for the rule of law by adding their encouragement for the FDA to ignore any adverse ruling by the courts.

During congressional hearings on the COVID-19 pandemic and the approval of the vaccine, Representative Mace was notably skeptical of the bureaucratic experts. Yet when it comes to the dangers of chemical abortion drugs, she is not merely deferential to the FDA but encouraging its unelected executive branch employees to thumb their noses at a co-equal branch of government. Our elected legislature should embrace its constitutional role as a check and balance on the executive branch instead of abdicating the responsibility to the judicial branch, or worse, undermining the rule of law.

Affirmative Action’s Unconvincing Defenders


Today, virtually all universities and colleges are on tenterhooks, anticipating that the Supreme Court in the twin cases of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina will likely ban modern affirmative action programs, often championed under the banner of “diversity, equity, and inclusion” (DEI). I regard the current posture of the debate as most unfortunate because it tends to push admissions practices to one extreme or the other.

To be sure, we could give precise content to a colorblind standard of university admissions: race cannot be counted, period. But that unitary description cannot carry over to affirmative action programs, which come in all sizes and shapes. The more sensible affirmative action programs do not mount a full-scale assault on traditional notions of academic excellence. Instead, these programs give great weight to traditional metrics of standardized tests and high school or college GPAs, and seek to implement modest affirmative action, usually by adding some weight to the scores or grades of minority applicants in order to boost their representation on campus. These programs recognize that adjusting applications for race at all involves some compromise between classical conceptions of individual excellence and merit and the belief (widely shared throughout institutions of higher education and business) that a diverse student body helps all students better prepare for work and life in an ever-more-diverse society.

In my view, a program with these modest assumptions would run into little opposition today. But modern DEI principles grossly exceed these bounds in also seeking to transform the inner culture of universities through programs that demand a rigid ideological loyalty to a progressive or even socialist agenda—an agenda that would require major societal transformation antithetical to traditional values of individual liberty and freedom of expression.

Join Jim and Greg as they applaud Alabama Sen. Katie Britt and her staff for discovering that U.S. Marshals were told not to arrest demonstrators outside the home of Supreme Court justices over last year’s leaked abortion ruling, even though they were clearly violating federal law. They also dive into the debate over whether the Nashville killer’s manifesto ought to be made public after the police say it will not be released while the investigation is active. What are the considerations for and against making it available? Finally, they sigh at another depressing poll, as Americans overwhelmingly think the federal government spends too much money but also strongly believe it spends too little on several key drivers of spending.

Join Jim and Greg as they offer up two bad martinis and a crazy one. First, they shake their heads in disbelief and deep skepticism that the Supreme Court couldn’t figure out who leaked Justice Alito’s majority opinion in the Dobbs case, which resulted in the overturning of Roe v. Wade. They also hammer President Biden for demanding no conditions whatsoever to an extension of the debt ceiling, even though his unconstitutional plan to “forgive” student debt by forcing the bill on other taxpayers caused this debate to happen months earlier than it should have. Finally, they roll their eyes at reports that Agriculture Secretary Tom Vilsack was tapped to co-chair the Supply Chain Disruption Task Force but never went to a single meeting.  Seems to be a lot of that going around with Biden cabinet secretaries.

Jim and Greg are back for the third round of their prestigious Three Martini Lunch Awards. Today, they discuss the biggest lies of 2022, with Jim focusing on our economy and Greg opting for an infuriating falsehood connected to our elections. Then, they reveal their choices for the best and worst political theater of 2022.

Join Jim and Greg as they discuss only good things today! First, Jim describes his wide-ranging interview with Virginia Gov. Glenn Youngkin about his plans for the coming year, what issues matter most, and whether he’s thinking about running for president. They also welcome the Supreme Court issuing a temporary stay that keeps the “Remain in Mexico” policy in place until a formal decision is in place. Finally, they dive into why “Die Hard” is obviously a Christmas movie and share other thoughts about what makes it such a great film.

Jim and Greg take time to reflect on what they are politically thankful for in 2022. Their items range from a war thousands of miles away to key developments right here in the U.S. And they offer some things they are personally thankful for too…including you! Happy Thanksgiving! We hope you enjoy this special edition of the 3 Martini Lunch.

This week on Hubwonk, host Joe Selvaggi talks with constitutional scholar Thomas Berry about the important questions being decided in the more high profile cases facing the newly opened session of the Supreme Court. They discuss how the addition of newly appointed Justice Ketanji Brown Jackson could add a fresh perspective on the concept of originalism.


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Republicans are often accused of initiating war on cultural issues and “taking away rights.” But it’s congressional Democrats who are using issues like abortion and same-sex marriage for purely political purposes and, in effect, attacking religious liberty. The latest is an effort by Senate Democratic Majority Leader Charles Schumer (D-NY) to bring legislation to the […]

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The U.S. Supreme Court’s 2021-2022 term is over, and its final ruling was on the “Remain in Mexico” case brought against the administration by the states of Texas and Missouri. But that is only one of a large number of immigration cases filed over the past year and a half since President Biden’s inauguration. The Center for Immigration Studies hosted a conversation on immigration-related lawsuits brought against the Biden administration, at 1 p.m. on Wednesday, July 6. The discussion focused on specific cases being litigated as well as on how litigation has affected decision-making in the executive and how it might influence Congress’s framing of legislation.