Immigration Law

Supreme Court Rules on Affirmative Action and Immigration - Podcast

Civil Rights and Federalism & Separation of Powers Practice Groups Podcast
Josh Blackman, Roger B. Clegg, Hans A. von Spakovsky June 23, 2016

On June 23, 2016, the United States Supreme Court issued a 4-3 decision in Fisher v. University of Texas, upholding the University’s affirmative action program. It also announced a 4-4 tie in United States v. Texas, affirming the decision of the Fifth Circuit to block President Obama’s executive order on immigration. Our experts discussed both developments and answered audience questions.


  • Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law
  • Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
  • Hon. Hans A. von Spakovsky, Senior Legal Fellow, The Heritage Foundation

United States v. Texas - Post-Argument SCOTUScast

SCOTUScast 5-12-16 featuring Josh Blackman
Josh Blackman May 12, 2016

On April 18, 2016, the Supreme Court heard oral arguments in United States v. Texas. This case relates back to the Department of Homeland Security’s (DHS) 2012 Deferred Action for Childhood Arrivals (DACA) program, which set forth special criteria to direct how DHS should exercise prosecutorial discretion in enforcing federal immigration laws against certain young persons. In 2014 DHS issued a memo that then expanded eligibility under DACA and directed establishment of a similar program for the parents of DACA-eligible persons: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)..

Twenty-six states sued in federal district court to prevent the DHS from implementing DAPA, arguing that DAPA violated the Administrative Procedure Act (APA) because it had not gone through a notice-and-comment process, and was moreover arbitrary and capricious. The states also argued that DAPA abrogated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The district court concluded that of the suing states, Texas had standing, and temporarily enjoined implementation of DAPA after determining that Texas had shown a substantial likelihood of success on its notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed that ruling, and further held that the other states had standing and has shown a substantial likelihood of success on both the notice-and-comment and arbitrary and capricious components of their APA claims.  The Fifth Circuit did not reach the Take Care clause claim.

The four questions before the Supreme Court in this case are: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the APA to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3--a question the Court itself directed the parties to brief.

To discuss the case, we have Josh Blackman, who is Assistant Professor of Law at South Texas College of Law.

Take Care on Immigration: United States v. Texas - Podcast

Federalism & Separation of Powers Practice Group Podcast
Josh Blackman April 18, 2016

On Monday, April 18, the United States Supreme Court heard oral arguments in United States v. Texas, which will examine the constitutionality of the President's executive actions on immigration. In addition to complex questions about standing and administrative law, the Court has added a Take Care Clause question to the argument. Our expert attended the oral arguments and offered a summary as well as his analysis.


  • Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law

Immigration Restrictions & the Constitution [FedSoc 5]

Transcript from short video featuring John Eastman and Ilya Somin
John C. Eastman, Ilya Somin April 01, 2016

A quick wrap-up of the immigration debate between Professors John Eastman and Ilya Somin from our 2016 National Student Symposium. 

Immigration restrictions keep millions of people stuck in impoverished countries – preventing them from improving their lives by moving somewhere else. However, some restrictions are clearly necessary to protect national security. And many say that our current laws do not go anywhere near far enough, arguing that additional restrictions are needed to prevent wage depression and the overburdening of our already-strained safety net. One way or another, immigration restrictions have an enormous impact on poverty, both domestically and abroad. But are such restrictions constitutional? This debate will address that question, along with the complex policy issues involved with the topic.

  • Prof. John Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Prof. Ilya Somin, Professor of Law, George Mason University School of Law