The President Alone Cannot Overhaul American Immigration Policy

The New York Magazine's Daily Intelligencer has a great article that makes the point I have been emphasizing in class for the past two weeks: rarely can the President alone overhaul American domestic policy. As I mentioned in my Constitutional Law class yesterday, President Trump this week issued an executive order to make it harder for H-1B Visas to be issued. The H-1B Visa is given to highly skilled workers where an employer claims that there are no Americans who can do the job. The President's order doesn't change the law, it simply enforces it differently.

Just how is explained very nicely in the NY Mag piece:

The order will direct the the departments of Labor, Justice, State, and Homeland Security to conduct reviews of the H-1B visa program and propose reforms. The Trump administration says current rules are going unenforced, and they want to see changes that ensure the visas are only going to “the most highly skilled workers.” According to the Washington Post, administration officials described various ways this could be accomplished: "The officials said reform could first come through administrative changes, such as raising the visa application fees, adjusting the wage scale to more accurately reflect prevailing salaries in the tech industry, and more vigorously enforcing violations. It could also change the lottery system to give foreigners with U.S. master’s degrees a leg up."

In short, as head of the Executive Branch, President Trump is asking an executive branch agency to enforce existing rules more forcefully. He is not changing the law, he is simply asking that it be enforced differently!

But as the article points out:

Signing an executive order lets Trump highlight his commitment to fulfilling his promise to protect American workers, but he can’t do a thorough overhaul of the program on his own. Changing certain fundamental elements, like how many visas are awarded each year, requires action from Congress.

This illustrates very nicely the point I was trying to make in class: the President can change how a law is enforced, but he cannot change the law itself. Only the Legislative Branch can do that.

Class Actions

In class, I seldom touch upon the role that class action lawsuits play in the American legal system, primarily because they are a confusing and foreign topic for non-Americans. Nevertheless, I have recently decided to spend more time talking about the use of these lawsuits in America, arguing that in fact the basic concept of a class action lawsuit is really neither confusing nor foreign. Today an article in the Süddeutsche Zeitung probably does a better job explaining the usefulness of class action lawsuits in three paragraphs than I did in thirty minutes of lecture:

Das Verbraucher- und Umweltrecht ist bei uns zahnlos, weil Instrumente zur Durchsetzung fehlen. Dazu bräuchte man entweder starke Behörden oder die effektive Bündelung von Individualrechten. In Deutschland gibt es weder das eine noch das andere. Das Kraftfahrt-Bundesamt agiert als Lehrbuchbeispiel für regulatory capture, also die Unterordnung einer Behörde unter die Partikularinteressen der Industrie. Die manipulierten Autos lässt man weiterfahren. Wenn Umweltverbände nach dem Informationsfreiheitsgesetz Akteneinsicht beantragen, werden ganze Aktenordner geschwärzt, um die Branche zu schützen.

Aber auch für einzelne Verbraucher ist es in Deutschland weitgehend sinnlos, der Übermacht von VW entgegenzutreten. Eine der wenigen Klagen wurde vom Landgericht Bochum im März mit dem erstaunlichen Argument abgewiesen, dass der vorschriftswidrig überhöhte Abgasausstoß nur ein Bagatellmangel sei; der Käufer habe schlicht auf die Nachbesserungsversuche von VW zu warten.

In den USA ermöglicht das Instrument der Sammelklage eine Bündelung der Ansprüche aller Kunden, sofern diese nicht ausdrücklich widersprechen. So wird die in einem komplexen Fall nötige Expertise und Schlagkraft geschaffen und Druck auf die Beklagten ausgeübt. In Deutschland ist dies nur über organisatorisch aufwendige Abtretungsmodelle denkbar, die von der Initiative jedes einzelnen Verbrauchers abhängen.

As I mentioned recently in my Introduction to American Law course, the class action lawsuit is by no means a perfect or efficient regulatory instrument, but sometimes it is the only instrument available to achieve a just and needed remedy. 

Judicial Review of Administrative Acts

Students in my American Constitutional Law course were recently exposed to the complex area of American Administrative Law concerning when and what kind of administrative acts the U.S. federal courts may review. A few weeks late, but nevertheless relatively timely, Forbes has published a short article about a case heading to the U.S. Supreme Court concerning an agency interpretation of federal law. The case concerns a recent Obama administrative rule broadening the definition of "waters of the United States." The term is found in the Clean Water Act, which gives the government the authority to prohibit landowners from building on certain land because of environmental concerns. According to Forbes:

The court’s decision to hear U.S. Army Corps of Engineers v. Hawkes Co. follows the Obama administration’s enactment of a new Clean Water Rule that puts millions of additional acres within the definition of “Waters of the U.S.” covered by the Clean Water Act. If the Supreme Court rules for the government in Hawkes, landowners will be left with a difficult choice if regulators decide their property contains wetlands: They can abandon all commercial use of it, apply for a permit with a high chance of being rejected, or risk ruinous fines and even jail if they modify the land.

Ultimately, this case boils down to the definition of "final agency action." As we learned in class, federal courts generally refrain from reviewing agency actions unless they are considered to be final. This short article is certainly worth a read. 

The Role of Judge and Jury

Other than the use of case law, there is perhaps nothing that distinguishes the common law system from the civil law system more than the roles played by judge and jury in a trial. This is particularly so when it comes sentencing (criminal cases) and remedies (civil cases). The jury, as we learn in class, has the role of "finding the facts." In other words, they hear the stories told by the parties and then try to determine what "really" happened. In civil cases it is also up to the jury to determine the appropriate remedy upon a finding that the defendant was liable. In criminal cases, on the other hand, once the jury has found a defendant guilty, their job is done. The sentencing of the convicted rests solely with the judge. With one minor exception in the United States: Capital Punishment. In class, I tend to over generalize this a bit in order to keep it simple. In reality, the Supreme Court's decision in Ring v. Arizona does not explicitly place the decision to execute the convicted solely in the hands of the jury. However, a case being heard by the Court this session might change that.

Can Private Parties Enforce Federal Regulations?

As with most questions in American Administrative Law, the answer is it depends. It depends on what the enabling statute (the statute either creating the agency or the agency's task) says. The law blog JURIST has a good example of a statute that allows private parties to enforce regulations and an instance where a federal judge found that environmental groups had standing to sue to enforce the regulations:

A federal judge on Tuesday permitted two environmental groups to sue a Texas refinery owned by ExxonMobil Corp. [corporate website] for failing to enforce federal environmental standards. The Sierra Club and Environment Texas [advocacy websites] filed the lawsuit [Reuters report] in December in the US District Court for the Southern District of Texas [official website] against ExxonMobil's Baytown, Texas, refinery and the adjacent chemical plant for allegedly releasing over 8 million pounds of pollutants beyond the levels permitted under the CAA in the last five years. The Clean Air Act (CAA) [materials] contains a provision permitting private individuals to seek enforcement of federal pollution laws when the US Environmental Protection Agency (EPA) [official website] fails to do so.

you can read the rest here.