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Judges in their own words

February 6, 2017

“Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don’t. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. In its haste to find a doctrine that can protect the policies of the present, our circuit should remember
the old warning: May all your dreams come true.”

—Ninth Circuit judge Alex Kozinski, dissenting from a denial of rehearing in Arizona DREAM Act Coalition v. Brewer, 2017 WL 461503 at *5) (9th Cir.). The case involved an Arizona policy that nullified certain aspects of the federal “DACA” program that protected certain undocumented persons and enabled them to obtain certain benefits, including the issuance of federal employment authorization documents. The Ninth Circuit affirmed the trial court injunction against the Arizona’s policy on the ground that it was preempted by federal law, including President Obama’s Executive Order. The 9th Circuit denied a rehearing en banc.

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