Did the Obama Administration Lie to the Federal Court About Implementation of Executive Amnesty?

We wrote here about State of Texas et al. v. United States, in which 26 states sued to enjoin the Obama administration from implementing its illegal executive amnesty program. On February 16, Judge Andrew Hanen granted the states’ motion for a preliminary injunction, barring the administration from taking any steps to effectuate the changes to the nation’s immigration laws that had been announced by the administration:

[T]his temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits to the four million or more individuals potentially covered by the DAPA Memorandum and to the three expansions/additions to the DACA program also contained in the same DAPA Memorandum.

Since Judge Hanen’s order was issued, it has come to light that by the date of the order, the Obama administration had already granted expanded DACA benefits (three years rather than two years) to approximately 100,000 illegal aliens. The Department of Justice disclosed this fact to Judge Hanen in a surprise filing:

In a “Defendants’ Advisory” filed with Hanen’s court late Tuesday, the Justice Department notified the judge that it has already implemented significant parts of the Expanded DACA program, and indeed that it has already granted expanded DACA protections and work permits to “approximately 100,000″ people.

The government’s lawyers essentially admitted that they were disclosing this fact because it was contrary to what they had previously told the court. That has led to a motion by the State of Texas to be allowed to conduct discovery to find out what happened. Here is Texas’s brief in support of that motion. It is damning:


The State quotes this colloquy with the court:

MS. HARTNETT [DOJ lawyer]: In that document [Defendants’ January 14 motion for extension of time] we reiterated that no applictions for the revised DACA — this is not even DAPA — revised DACA would be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.

THE COURT: But as far as you know, nothing is going to happen in the next three weeks?

MS. HARTNETT: No, Your Honor.

THE COURT: Okay. On either.

MS. HARTNETT: In terms of accepting applications or granting any up or down applications.


MS. HARTNETT: For revised DACA, just to be totally clear.

On the basis of that representation, the court extended the briefing schedule on the motion for a preliminary injunction. As the State’s brief explains cogently, if the State had known that the Obama administration was already moving forward with implementation of the revisions to DACA that were at issue in the case, it would have moved for a temporary restraining order to block such actions. No doubt such a motion would have been granted.

It seems beyond dispute that the Obama administration misrepresented to the federal court what it was doing (hence the “Defendants’ Advisory”). However, the word “lie” is a strong one. It may well be that the government’s lawyers were not aware of the zeal with which certain federal agencies had moved forward to re-write the nation’s immigration laws. Of course, lawyers should not make representations to courts unless they have verified that they are true. One way or another, it seems clear that the Obama administration misled the court and opposing counsel, and as a result has granted 100,000 applications that otherwise would have been barred by the court’s preliminary injunction. If my extensive experience with federal judges is typical, the court is likely to be unhappy with this state of affairs.

The damage the Obama administration has done to the United States falls into three broad categories: 1) its extreme leftism, 2) its incompetence, and 3) its lawlessness. It may well be that when historians assess the wreckage, the administration’s lawlessness is considered the most damaging quality of all.

Clinton reportedly told State Dept. personnel not to use private email

Fox News is reporting that in a 2011 State Department cable, Hillary Clinton instructed employees not to use personal email. The cable cited security reasons.

All the while, as we now know, Clinton was using only her personal email to communicate electronically about State Department business.

The cable, which bears Clinton’s electronic signature, reportedly states that employees should “avoid conducting official Department from your personal e-mail accounts.” It also states that employees should not “auto-forward Department email to personal email accounts which is prohibited by Department policy.”

The cable cites the State Department procedures that prohibit using private email to conduct Department business. That procedure appears at 12 Foreign Affairs Manual, 544.3.

In a related development, the Washington Post reports that “Democratic activists” are “more eager than ever for alternatives [to Clinton] in 2016.”

Dr. Willie Soon Responds

We wrote here about the Left’s effort to smear Dr. Willie Soon, who has written for many years about the Sun’s role in variations in the Earth’s climate. (How controversial can you get?) The smearing of Dr. Soon was a warm-up for the Democrats’ assault on the Magnificent Seven climate realists, a group that includes our own Steve Hayward. Dr. Soon has now released this statement in response to the attacks on him. It is, I think, a model of lucidity and a valuable reminder of how disgraceful the Left’s refusal to engage in scientific debate truly is.

In recent weeks I have been the target of attacks in the press by various radical environmental and politically motivated groups. This effort should be seen for what it is: a shameless attempt to silence my scientific research and writings, and to make an example out of me as a warning to any other researcher who may dare question in the slightest their fervently held orthodoxy of anthropogenic global warming.

I am saddened and appalled by this effort, not only because of the personal hurt it causes me and my family and friends, but also because of the damage it does to the integrity of the scientific process. I am willing to debate the substance of my research and competing views of climate change with anyone, anytime, anywhere. It is a shame that those who disagree with me resolutely decline all public debate and stoop instead to underhanded and unscientific ad hominem tactics.

Let me be clear. I have never been motivated by financial gain to write any scientific paper, nor have I ever hidden grants or any other alleged conflict of interest. I have been a solar and stellar physicist at the Harvard-Smithsonian Center for Astrophysics for a quarter of a century, during which time I have published numerous peer-reviewed, scholarly articles. The fact that my research has been supported in part by donations to the Smithsonian Institution from many sources, including some energy producers, has long been a matter of public record. In submitting my academic writings I have always complied with what I understood to be disclosure practices in my field generally, consistent with the level of disclosure made by many of my Smithsonian colleagues.

If the standards for disclosure are to change, then let them change evenly. If a journal that has peer-reviewed and published my work concludes that additional disclosures are appropriate, I am happy to comply. I would ask only that other authors-on all sides of the debate-are also required to make similar disclosures. And I call on the media outlets that have so quickly repeated my attackers’ accusations to similarly look into the motivations of and disclosures that may or may not have been made by their preferred, IPCC-linked scientists.

I regret deeply that the attacks on me now appear to have spilled over onto other scientists who have dared to question the degree to which human activities might be causing dangerous global warming, a topic that ought rightly be the subject of rigorous open debate, not personal attack. I similarly regret the terrible message this pillorying sends young researchers about the costs of questioning widely accepted “truths.”

Finally, I thank all my many colleagues and friends who have bravely objected to this smear campaign on my behalf and I challenge all parties involved to focus on real scientific issues for the betterment of humanity.

Dr. Wei-Hock “Willie” Soon
Harvard-Smithsonian Center for Astrophysics

A Simple Question About Iran

We keep hearing from Democratic critics of Prime Minister Netanyahu’s speech that if we don’t reach an agreement with Iran, then the path will be clear for Iran to have a bomb soon.  Explicit is the idea that even a bad agreement is better than no agreement.

Hold on a minute.  Isn’t there something missing here?  I thought “all options were on the table.”  Obama has said this repeatedly.  Now he and his political allies seem to admit it isn’t true.  After all, shouldn’t Obama’s and John Kerry’s message to Iran in their Geneva talks be this simple and direct: “Either you reach a good agreement, or we bomb your nuclear sites into oblivion”?

Ah, yes: I see the obvious problem: such a threat from Obama and John Kerry has no credibility.

Still, someone should josh Earnest directly at a White House press gaggle: “So are we to understand that the use of military force against Iran is off the table?”

The Most Trusted Man in America on Climate Change

Heh.  Walter Cronkite—the Most Trusted Man in America, don’t forget—on the topic of climate change, in 1972.  Just 25 seconds long.  Heh, again: (more…)

Hillary sacked ambassador who opted for private email

Mark Hemingway of the Weekly Standard calls our attention to the case of Kenya Scott Gration, the former U.S. ambassador to Kenya. He abruptly “stepped down” in 2012, prompted by a withering evaluation from the State Department, then under the direction of Hillary Clinton.

The report found multiple concerns with Gration’s performance. One of them was the following:

Because the information management office could not change the Department’s policy for handling Sensitive But Unclassified material, [Gration] assumed charge of the mission’s information management operations. He ordered a commercial Internet connection installed in his embassy office bathroom so he could work there on a laptop not connected to the Department email system. He drafted and distributed a mission policy authorizing himself and other mission personnel to use commercial email for daily communication of official government business.

During the inspection, the Ambassador continued to use commercial email for official government business. The Department email system provides automatic security, record-keeping, and backup functions as required.

The Ambassador’s requirements for use of commercial email in the office and his flouting of direct instructions to adhere to Department policy have placed the information management staff in a conundrum: balancing the desire to be responsive to their mission leader and the need to adhere to Department regulations and government information security standards.

This report should leave no doubt that, in Hillary Clinton’s State Department, using a private email outside the State Department’s secure system was improper under Department regulations and government information security standards. As Hemingway concludes, if doing so was unacceptable for an ambassador, it certainly should be deemed unacceptable for the Secretary of State herself.

King v. Burwell, the day after

The consensus following oral argument in King v. Burwell is that the votes of two Justices are in play. Based on the questioning, it seems clear that the four-judge liberal bloc will vote to affirm the decision that Obamacare subsidies may be granted to those using the federal exchange. Justices Scalia and Alito appear set to vote to reverse that decision. Justice Thomas did not ask questions — his usual practice — but is considered a likely third vote for reversal.

This leaves Chief Justice Roberts and Justice Kennedy as the “swing” votes. To reverse — i.e., to rule that subsidies are not permissible on the federal exchange — both would have to vote this way.

Note that at least one of the two was probably inclined last year to reverse. Otherwise it’s unlikely that there would have been four votes to hear the case in the absence of a split among the Circuit Courts of Appeal. But that was then; this is now.

Chief Justice Roberts said little during the argument that can be interpreted as indicating how he will vote in King. By contrast, Justice Kennedy said a mouthful.

As I noted yesterday, Kennedy expressed serious “constitutional” concern about a system that coerces states to create exchanges as a condition of their residents being eligible for federal subsidies with which to purchase Obamacare-compliant insurance policies. The coercion stems, in Kennedy’s view, from the fact that, absent the subsidies, a “death spiral” might occur in the insurance markets of states that don’t agree to establish exchanges.

Kennedy’s concern could cause him to interpret the statute as not establishing such a coercive regime, but instead providing subsidies on the federal exchange, as the government argues.

Kennedy’s constitutional concern is unwarranted in my opinion. As Randy Barnett points out, eight states filed amicus briefs in support of petitioners. They argued that they don’t want exchanges or subsidies. These states clearly don’t feel “coerced.”

Moreover, the government didn’t raise any constitutional concern as a basis for interpreting the statute as permitting subsidies on the federal exchange. It’s true that the government would rarely question the constitutionality of a federal statute, especially the landmark statute of the current administration.

However, the government could have made the “constitutional avoidance” argument without attacking the constitutionality of Obamacare. It could simply have argued that the statute does not limit subsidies to the state exchanges and, if it had included a provision so limiting them, that provision would be unconstitutional.

The government did not make this argument, though. And yesterday, its lawyer described the argument as raising a novel issue. Perhaps he agrees with Oklahoma Attorney General Scott Pruitt that “there is no legal precedent for a finding of coercion based solely on the fact that a federal program does not work well when the states decline to assist in its implementation.”

In any event, the “avoidance” doctrine only comes into play if the statute is ambiguous. If the language of the statute is clear, it must be construed consistently with its plain meaning whether or not that construction renders the provision unconstitutional.

But what counts here is how Justice Kennedy views the matter. On this question, I recommend Ed Whelan’s “parsing” of Kennedy’s comments. At one point, Kennedy stated “it may well be that [the challengers are] correct as to these words, and there’s nothing we can do” to interpret them in a different way.” If so, the government should lose Kennedy’s vote.

Moreover, to the extent that a constitutional concern exists, what is the best way to deal with it? According to Barnett, the best approach would be to “limit subsidies to exchanges ‘established by the state,’ and then invite states who feel coerced to choose to bring a coercion challenge in the future.” Whelan finds some basis in Kennedy’s comments for believing that he might opt for this approach.

Finally, what would the remedy be if the Court found a valid constitutional concern? Do you rewrite the statute to make subsidies available in states that don’t establish exchanges? Or do you strike down the federal insurance regulations that allegedly create the “death spiral” and thereby threaten to “destroy” state insurance markets unless states set up exchanges?

Barnett argues that the latter remedy makes more sense.

At the end of “day after,” we see that this case has plenty of moving parts including, let’s not forget, how Chief Justice Roberts views these matters. In the previous Obamacare case, Roberts decided that it would be unconstitutionally coercive for Congress to tell the states that unless they accept the extension of Medicaid, they will lose their Medicaid funding.

Perhaps the Chief Justice sees a similar problem here. Perhaps, as liberal law professor Noah Feldman speculates, Justice Kennedy was trying to convince Roberts that such a problem exists, so that Kennedy’s vote will not be the one that saves Obamacare.

The outcome of King v. Burwell is in doubt, but the odds seem to favor the government.