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Thread: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

  1. #21
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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by NWRatCon View Post
    9th Circuit rules in favor of Trump admin in 'sanctuary city' case. While the headline is a bit misleading, I posted in this thread because of the rationale of the panel Majority and the Dissent. The case, Los Angeles v. Barr is important for a few reasons. First, it gave the administration a court victory. Second, it demonstrated that court ideologues will use even disfavored doctrine (Chevron) when it suits their interests. Third, it further erodes the authority of Congress. Finally, it demonstrates that Mitch McConnell is right - the power of appointment can invalidate any other legislative interest.
    SMH...here's to not looking to the future.

    The just gave a future, liberal president the means to push policy through. And you on the right are going to scream and cry foul and try to pretend forget that you wanted this....

  2. #22
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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by NWRatCon View Post
    ... It is significant that the majority did not mention of how many applicants overall (successful and not), submitted the "certification", which was the DOJ's primary goal in changing the criteria - but the dissent did.

    THAT is the relevant analysis, as it is what informs most discrimination claims (differential effect)... I was just struck by the contrast in approach/lineup between the LA and Gundy decisions.

    Overall, I agree with Judge Laidlaw's approach and conclusion...that "DOJ exceeded its statutory authority specifically by giving preference to jurisdictions willing to partner with federal immigration enforcement authorities." ...jurisdictions that provided the certification nearly doubled their chances to be awarded a grant. ...DOJ's added criteria actually runs counter to the fundamental purpose of the COPS program (community policing):
    Your points and my response to each can be distilled to the following:

    1) You noticed the contrast between LA and Gundy decisions

    So did I. LA was a dispute over the legitimacy of grant criteria. Gundy was about a dispute over the separation of power, whether or not Congress has effectively (and unconstitutionally) transferred legislative power by giving the AG the power to make criminal infractions at his option.

    2) The jurisdictions who were willing to partner with federal immigration authorities had double the chance of approval, and that differentials makes it telling.

    Differentials in preferential outcome are not, in themselves, unlawful or unfair. People and the law discriminates (makes preferential choices) all the time (e.g. the income tax code). In the case of the grant legislation, the point system granting extra points for federal cooperation on issues of public safety concern to both state and the federal government, reflects some priority in policing that, in the opinion of the AG needs addressed.

    3) The criteria involving such cooperation actually runs counter to the fundamental purpose of the COPS program. That is a matter of policy and political opinion, of which the judge should not be deciding for Congress or the delegated authority to the AG, at least not without a methodology clearer than judicial "I don't agree".

    Earlier you brought up two questions on Chevron doctrine, and used two terms that I have not noticed in the literature. I asked for a definition, and you have not replied to my request or to the post. Therefore, I'll characterize my views using terms that I am familiar with:

    I do not believe Chevron should be unbounded, but I do believe it is the only doctrine that is and will be accepted for years to come. Therefore I believe that it needs, in practice, to be modified.

    First, before the two step procedure, the court should determine if an agency has been delegated (explicitly or implicitly) the power to resolve ambiguities. Ambiguity is a necessary but not sufficient condition for deference. "Where it is unlikely or implausible that Congress would have delegated interpretive authority to an administrative agency, there should be no Chevron deference". (Adler)

    Second, where the text is silent is not, in and of itself, an ambiguity giving deference. To grant deference on that basis would presume that whatever is not forbidden is allowed.

    Third, the magnitude or consequence of a policy question may be such that a court should be extra cautious before presuming Congress has delegated a question to the agency.

    Four, Congress rarely, if ever, implicitly or explicitly delegates the authority to agencies to resolve legislative contradictions or mistakes. It is one thing to argue that a gap or an ambiguity was an implicit delegation to fill in the details, but quite different to conclude that when Congress has sloppily enacted clearly conflicting and contradictory provisions , it delegated to the agency the power to choose which provision should control. "Chevron is not a license for an agency to repair a statute that does not make sense.”93 [Adler]

    Last, the courts and congress must do their job. The courts job is interpret the law where it can be reasonably certain that the ambiguities can be resolved confidently. However, it is not the job of the court's to fix broken legislation. Therefore I would favor a much more assertive stance that routinely strikes down parts or the whole of legislation that is too ambiguous, contradictory, or confusing to justly call "the law".

    Congress has not been accountable for their law making, and a series of slap-downs based on their poor job is overdue... ACA having been one of them.

    "Restoring Chevron's Domain" by Jonathan Adler
    Last edited by maxparrish; 07-17-19 at 01:46 PM.

  3. #23
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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    I appreciate the detailed and polite back-and-forth over the issue. I suspect, when I have the opportunity to delve more deeply into the decisions, posts and other material, I'll have more to share. Unfortunately, my time for intellectual fancies is presently constricted by guests and a good deal of "home projects" this week. Not intending to ignore anyone. I hope it did not appear so.
    Mission: "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." ACLU. Why isn't every American a member?

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