Category Archives: Civil Rights

Immigration Kerflufle

We knew the policy was coming.  We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented.  Now, we have a fustercluck of a “temporary” Arab ban policy.  There are potential legal issues involved which I will discuss below.  As a major cautionary note, I don’t do immigration law.  Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.

Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders.  While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better.  Instead, we have a policy statement masquerading as a policy.

Normally before an executive order is released, the White House staff has consulted with the effected agencies — here, State, Homeland Security, I.C.E., U.S.C.I.S., and T.S.A. — to get their input and make sure that everyone is on the same page at the time of implementation.  Additionally, the Office of Legal Counsel typically has gone through the order to make sure that it is legally defensible — not necessarily a winning defense, but at least no glaring fatal flaws for which there is not even a colorable defense — and clearly sets forth the policy. Continue Reading...

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The Supreme Court — Year in Review; Year yet to Come

The big court story of 2016 was the February death of Justice Antonin Scalia.  In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama.  However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general.  The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess).  By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.

At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court.  A win this past November would have led to a solid Democratic majority for the next two or three decades.  However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues.  As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners.  (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.)  At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet.  The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters.  Democratic voters may soon suffer for this failure of leadership.

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I am Spartacus. Are You?

Yes, Spartacus was a real man. but many of us remember instead the Kirk Douglas character from the 1960 movie, and the line “I am Spartacus” which has come to mean that many people claim to be someone who “they” are going to harm. In case you don’t know, the movie’s screenplay was written by Dalton Trumbo, who had been blacklisted by the McCarthy HUAC. President-elect John Kennedy crossed the American Legion picket lines to see the movie. It was that action that finally ended the blacklist.

A new president-elect, and the role of Antoninus is this time played by Jonathan Greenblatt, CEO of the Anti-Defamation League, a US-based international Jewish NGO. Greenblatt announced earlier this week that when and if Trump launches the Muslim registry, he will sign.

If you don’t think that the Trump administration will come for Muslims, Mexicans, hell, anyone whose skin tone is not alabaster, plus LGBQT people, disabled people, etc., is simply naive. And simultaneously they’ll come for SNAP, Medicare, Medicaid and Social Security, but I digress. Continue Reading...

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What Now?

As it all sinks in….at the polls yesterday, I heard from Democrats who were voting for Trump for a variety of reasons. I have looked at the preliminary exit poll data and the turnout numbers and think I have an idea of how this happened. The final cross tabs might change things but bottom line — people who NEVER vote came out in droves. And what they voted against was the same thing that gave Britain Brexit — their hatred of modernity.  So what do we do? While we organize (and re-read James Madison’s Federalist Paper #10) we wait somewhat quietly to see if in his first hundred days he DOES:

  • deport massive numbers of undocumented human beings,
  • ban Muslims,
  • repeal the Affordable Care Act,
  • add a Supreme who will vote to keep Citizen’s United, repeal gay marriage, ban all abortions even to save the life of the mother
  • cut taxes for only the weathly
  • leave NAFTA
  • et, al.

Because if he does, THEN we know the plan.

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Supreme Court and Politics

no_more_hate (2)In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree.  By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular.  Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies.  The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices.  (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years.  Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)

The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics.  To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much.  However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election.  This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split).  Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines.  That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review.  While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.

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A “Rigged” Election

animated flag glitterFor several weeks, Donald Trump has been spouting a lot about how, if he loses, it will because the election was “rigged.”  As discussed further below, in the sense of fraud and phony votes, it is almost impossible to rig an election.  However, as in the Republican primary, to the extent that the election is rigged in the sense of the rules favoring a certain candidate, the rules are almost certainly rigged in favor of Donald Trump.

The first and biggest way that the rules are rigged in favor of Donald Trump is the  electoral college.  As folks may remember from high school history or government class, a vote for a candidate for president is actually a vote for a slate of electors supporting the candidate.  Those electors then vote in December for the candidate on whose slate they ran.  A candidate needs to win 270 of the 538 electors to win.  Each state has a number of electors equivalent to the state’s representation in Congress — it’s House seats plus its Senate seats.  Because every state has two Senate seats,  the electoral college is weighted in favor of small states.  (If you have two House seats, you have twice as many electoral votes as House seats.  If you have fifty House seats, you only have four percent more electoral votes than House seats.)  Of the twenty-one smallest states (those with four or fewer House seats), Republicans have won twelve of the twenty-one states in the past four elections.  Of the nine states that have gone Democratic in one or more of the last four elections, four are considered swing states.

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Photo ID and the Courts

Vote!In recent years, the Supreme Court has had its version of an “election rule.”  The essence of this rule is that the Supreme Court does not like last second changes to the election process.  Regardless of whether the change comes from state election authorities changing the state’s procedure or a court decision resolving a challenge to those procedures, the Supreme Court prefers to “freeze” the status quo far enough in advance of the election so that voters know the rules and can take steps to comply with those rules.  Perhaps in response to this implied vague deadline (a little less implied in the case of Texas where the Supreme Court indicated that they would consider intervening in there was not a court decision by the end of July), the last several weeks of have seen court decisions in multiple cases involving multiple states seeking to impose a requirement that voters present photographic ID to vote in-person.

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Affirmative Action Survives — Barely

On Thursday, in a rather surprising turn of events, the Supreme Court upheld the admission policy of the University of Texas at Austin against a complaint that it unconstitutionally favored African-Americans.  This decision is surprising both because of the outcome, but also because of who wrote the opinion.

The basics of admission at UT is that the first cut of admissions comes from the “top 10%” program.  If you go to high school in Texas and finish in the top 10% of your school and want to go to UT, you are automatically accepted (actually due to the cap on the number of admissions under this program, it is now closer to a top 7% program).  This part of the admissions process fills about 75% of the slots.  If you are home schooled, or out-of-state, or finish outside the top ten percent (whether that is 4th out of a graduation class of 30 or 150th out of a graduating class of 160), you have to compete based on a combination of your academic index (your GPA plus SAT score) and your “personal achievement index” (a score based on the admission essay, extracurricular activities, demonstrated leadership, and other factors with race being one of the other factors).    Because race can impact the personal achievement factor, a white student who did not qualify under the top 10% program challenged her failure to make it under this second admissions process, claiming that it violated the equal protection clause of the fourteenth amendment.

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Orlando

no_more_hate (2)This morning on the radio, they were asking for people to tweet whether the problem related to Orlando was whether there were too many guns, or not enough oversight on the mentally ill. How very, VERY, wrong a question.

The tragedy at Pulse has so many root causes, and so much blame to go around. I am struck by all the lives affected: the dead, the injured, their families, friends and co-workers, plus everyone who is LGBTQI. And I have questions. Many questions.

First, I have LGBTQI friends. I don’t think of them as L or G or B or T or Q or I — they are my friends. The people I share a meal with, dance with, go shopping with….just plain friends. I used to have a lot more gay male friends, sadly lost to what was then called GRID, before it was AIDS. I’ve watched the struggles over the years: the hiding before Stonewall, the discrimination, the beatings for having been born. The evangelicals say that we are all created in G-d’s image: how do they integrate their supposed love of G-d with their obvious hatred of those created in her image? Rumor has it that the shooter was “incensed” by seeing two men kissing. I don’t get it. Continue Reading...

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Gender Identity, Bathrooms and the Courts

In recent weeks, the issue of gender identity as it applies to bathrooms in public schools has been in the news.  In particular, as the U.S. government has taken a position on this issue, certain (Republican-controlled) states have objected to the government’s position.  This objection (at least in the media) has not been on the merits — should students who identify as a different gender than their biological gender use the bathroom of their preferred gender identity or their biological gender — but rather attacking the federal government even taking a position.  This attack is both historically flawed and misrepresents what is taking place.

The history part of this discussion requires going back to 1865.  The United States government had just won the Civil War.  As part of the executive plan for reconstruction, the southern states had to abolish slavery, but otherwise were generally allowed to re-form their government with few restrictions.  These newly re-formed governments promptly enacted new legislation to greatly restrict the freedom of the former slaves.  In response, Congress passed a series of statutes and then proposed a new constitutional amendment (which became the Fourteenth Amendment) guaranteeing equal protection of the laws to all residents and authorizing Congress to pass legislation to enforce that guarantee.

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