The Supreme Court's order is here. It's 5-4, lined up as you would expect.Leal and the United States ask us to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision. Leal contends that the Due Process Clause prohibits Texas from executing him while such legislation is under consideration. This argument is meritless. The Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.The United States does not endorse Leal's due process claim. Instead, it asks us to stay the execution until January 2012 in support of our "future jurisdiction to review the judgment in a proceeding" under this yet-to-be enacted legislation. Brief for United States as Amicus Curiae 2-3, n. 1. It relies on the fact that on June 14, 2011, Senator Patrick Leahy introduced implementing legislation in the Senate with the Executive Branch's support. No implementing legislation has been introduced in the House.We reject this suggestion. First, we are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be. In light of Medellín I, it is clear that there is no "fair prospect that a majority of the Court will conclude that the decision below was erroneous," O'Brien v. O'Laughlin, 557 U. S. ___, ___ (2009) (slip op., at 2) (BREYER, J., in chambers), and our task should be at an end. Neither the United States nor JUSTICE BREYER, post, at 1-6 (dissenting opinion), cites a single instance in this Court's history in which a stay issued under analogous circumstances.My previous post on the case is here. Bill Otis's take on it is here. Kenneth Anderson has this post at Volokh Conspiracy, followed by the usual VC comment thread of high intensity and low information.
Politics is the art of the possible. We relegate the impossible to fiction.
In this difficult political environment we need to present proposals to congress that can move the immigration reform process forward in a meaningful way and in a way that might realistically lead to results. In an era where it is unlikely that the Dream Act would pass, we might achieve similar results if we present a proposal that restores suspension of deportation in it's pre-1996 form for persons under twenty-one who have been living in the United States more than seven years prior to their eighteenth birthday and have graduated high school or served in the military. The details can be negotiated.
There are many advantages to pushing this proposal as an alternative to the dream act. It will achieve substantially the same results as dream. It might be politically acceptable to a congress that doesn't want to be accused of passing an amnesty while at the same time allowing congress to claim that they achieved a significant result for the immigrant community. It also is substantially just and will allow young people who were brought here through no fault of their own to obtain legal status. It also gives authority to the Immigration Judges to use judgment.
Suspension in lieu of dream is possible. Right now dream is not. The possible against the impossible. Political change or fiction?
The immigration bar has been unable to reform the immigration system partly because it has taken politically unrealistic positions during the last twenty years. The Dream Act was possible through much of the past decade but the push was for the CIR amnesty. The bar asked for too much.
When the recession hit it was no longer possible even for dream. We cannot fall into the same trap of asking for what the country will not accept. Sticking to dream will assure that there will be no reform for several years. We can no longer remain ten years behind the times.
Presenting proposals to congress that can pass will achieve two purposes. It will show congress that there are proposals on the table that they can pass and having passed one and seeing that the sky did not fall, congress would be able to look at additional proposals to address a dysfunctional immigration and visa process.
Giving congress ammunition that actually fits into their guns creates a president that might allow us to make further proposals that can improve the system again.
We need to start somewhere and we need new ideas. The old ideas have not worked. If we take the position that this does not go far enough we are positioning ourselves outside the American mainstream and we have little hope of success.
If this proves to be a fair and viable way to treat our undocumented youth we might be in a position of turning back the clock and pushing a change of cancellation of removal back to suspension or at least to modify the harsh standard of hardship required of undocumented persons with legal family in the United States.
We are desperately in need of a win and this might by a prescription to obtain one.
Are we to engage in politics or fiction?