Latest Case: Make The Road New York v. Wolf (Government & Administrative Law)

Trump’s Upcoming Refusal to Leave Office: The Good News

NEIL H. BUCHANAN

In this two-part series of columns, UF Levin College of Law professor Neil H. Buchanan discusses some new reasons for guarded optimism that Americans are beginning to recognize—and thus might be able to mitigate—the danger Donald Trump represents to American democracy. In this first part, Buchanan grounds his guarded optimism in Joe Biden’s expressly voicing concern that Trump will not leave the White House if he loses the election.

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How the President and Attorney General Could Have Avoided the Geoffrey Berman Debacle

VIKRAM DAVID AMAR

Illinois Law dean and professor Vikram David Amar comments on the recent dispute over the U.S. Attorney for the Southern District of New York and explains what President Trump and Attorney General Barr could have done to avoid the problem altogether. Amar describes a process that, if followed, could have allowed the administration to appoint their first-choice candidate without causing the controversy in which it now finds itself.

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Make The Road New York v. Wolf

Docket: 19-5298

Opinion Date: June 23, 2020

Judge: Patricia Ann Millett

Areas of Law: Government & Administrative Law, Immigration Law

Associations filed suit contending that the Secretary's decision to expand the reach of the expedited removal process to its statutory limit, sweeping in all individuals without documentation who have resided in the United States for less than two years, violated the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the Suspension Clause. The district court granted a preliminary injunction against the expansion based only on the APA claims, but did not address the INA and constitutional claims. The DC Circuit held that the district court properly exercised jurisdiction under 8 U.S.C. 1252(e) over the Associations' case. However, because Congress committed the judgment whether to expand expedited removal to the Secretary's "sole and unreviewable discretion," 8 U.S.C. 1225(b)(1)(A)(iii)(I), the Secretary's decision is not subject to review under the APA's standards for agency decisionmaking. Furthermore, the Secretary's decision is not subject to the APA's notice-and-comment rulemaking requirements. Accordingly, the court reversed the district court's grant of a preliminary injunction and remanded for further proceedings.