Tag Archives: Immigration

Immigration Week at the Supreme Court

While the timing of the release of cases by the Supreme Court is somewhat random, ocassionally, we get several unrelated cases in the same area of law.  This week, out of eight cases released by the Supreme Court, three were somewhat significant immigration cases.

The most favorable for immigrants, and the one most likely to be significant for other areas of law was United States vs. Texas. The basic facts of this case is that the law on immigration mandates that the government pursue “removal” (i.e. deportation) against a wide range of immigrants — both those who unlawfully entered the U.S. (or unlawfully remained after their authorization expired) and those who have engaged in some act which justifies terminating the authorization to remain in the U.S.  The problem is that  (as is true for other areas of criminal and civil law enforcement) enforcing the law takes resources.  You need agents to investigate, attorney to handle the cases on behalf of the U.S., and judges to hear the cases once they are brought. And Congress is only willing to budget for a certain number of agents, attorneys, and immigration judges.  Thus, the enforcement agency (Immigrations and Customs Enforcement which is part of the Department of Homeland Security) has to set priorities.  In setting priorities, it is conceivable that an agency could pursue a “first in” policy in which it pursues all cases in the order in which they come in.  But that creates a never ending backlog in which the most serious cases get delayed.  On the other hand, the government can decide which casses qualify as the “most serious” and let “minor” cases slide.  Every administration for the past fifty years has set (and over the course of the administration adjusted) its own priorities.

In the past, states have typically recognized that federal government decisions are federal government decisions and that the states have no authority to challenge the decisions.  But in recent years, state Attorney Generals have switched from building up their reputation via criminal cases to filing frivolous claims against the federal government.  So today, every decision made by the federal government inevitably results in Attorney Generals of the other party filing a suit on behalf of their state.  And thus, when the Biden Administration implemented its priorities for enforcing immigration law, red state Attorney Generals led by accused felon Ken Paxton, Attorney General of Texas, filed suit claiming that the policy was improperly adopted (claiming that such a directive needed to be adopted through the same process as a formal regulation) and failed to comply with the statutory mandate.  Because this case was filed in federal court in Texas (heard by a very Trumpy judge) and appealed to the Fifth Circuit, the lower courts were more than willing to grant relief to Texas and bar the Biden priorities.  The United States Supreme Court reversed finding that the states lacked “standing” (or in plain English, the right to sue).   Stripped to its essence, the Supreme Court found that, while the failure to more vigorously enforce immigration laws might, in some way, harm the states, finding that the government’s priorities were in some sense wrong would not eliminate the harm.  In short, enforcement priorities are inherently a matter of discretionary decision making by the Executive branch and it would be improper for the courts to interfere with that discretionary authority. Continue Reading...

Posted in Judicial | Also tagged , , Comments Off on Immigration Week at the Supreme Court

Supreme Court — Two Weeks to Go

We are now down to two weeks left before the effective end of this year’s Supreme Court term.  (Officially, the term ends at the start of October when the next term begins.  But the Supreme Court usually issues all of its opinions before the Fourth of July and only handles emergency matters in July, August, and September.)  As was noted in the post two weeks ago, there are some unwritten rules regarding how the workload is distributed among the justices which makes it possible (not easy but possible) to speculate about who might have which cases.

One complicating factor in this year’s term (as discussed two weeks ago and last week) is that we do not know how many written opinions we are getting this term.  There are three ways that we could end up with fewer opinions:  1) in related cases, the Supreme Court could “consolidate” the cases and issue one opinion covering both cases (this normally happens before argument, but can happen when opinions are assigned); 2) in related cases, the Supreme Court could decide to issue a signed opinion in one case and an unsigned opinion in the other case; and 3) the Supreme Court can dismiss a case after argument.  We have already seen all three possibilities occur this term.  We could have up to eighteen opinions still to come this term.  At the present time, we know that we will have two opinion days this upcoming week.  In last week’s two opinion days, we only get five opinions, but we got six opinions on one day back in May.  My hunch says that we are likely looking at two or three opinion days the week of June 26, but the Supreme Court tends to keep that information closely held and it tends to not announce the last opinion day until the next-to-last opinion day.

How many opinions we have left matters because the Supreme Court tends to try to keep the workload balanced.  If we have eighteen opinions left, there will be fifty-six total opinions for the term which would mean that every justice would have six opinions with two justices getting seven opinions.  But it is possible that some of the remaining cases could have no opinion.  While, due to Justice Jackson recusing in the Harvard case, it is unlikely that the two Affirmative Action cases will be consolidated, it is easy to see a signed opinion in the North Carolina case and an unsigned opinion in the Harvard case.  We could see a consolidated opinion in the student loan forgiveness cases.  And everyone is expecting a dismissal in the North Carolina redistricting case. Continue Reading...

Posted in Civil Rights, Judicial, LGBT | Also tagged , , , , , , , Comments Off on Supreme Court — Two Weeks to Go

Title 8 vs. Title 42 — A Brief Primer on Immigration Law

This past week, the expiration of “Title 42” was a big headline in the news.  And, while it is too soon to be sure, it is likely that the expiration may end up being a tempest in a tea pot (not that the MAGA folks will ever admit this reality).  But to the extent that this comes up as a topic, here is some basic (admittedly oversimplified) immigration law for non-lawyers.

One of the major development in law in the late eighteenth and early nineteenth century was the Napoleonic Code in France.  Prior to Napoleon, when laws were enacted, they were recorded and published.  But you would need to search through every annual volume to see what the statutes were on any given topic.  The concept behind the Napoleonic Code was that in addition to the annual volumes of that year’s new statute, there would also be a collection organized by topic of the current laws in effect on a topic.  It took time for the idea to catch on her, but eventually, the U.S. organized its laws into the U.S. Code.

But there is one problem with the code system — where do you place a law in the code that impacts multiple topics.  When it comes to immigration law, most laws impacting immigration are found in Title 8 — the part of the U.S. Code governing immigration and naturalization.  However, there is also a title of the U.S. Code (Title 18) that contains most of the federal criminal statutes — which is why there are some things that are not allowed by Title 8 which are simply improper immigration and not criminal.  And for this discussion, there is Title 42 which contains laws related to Public Health and Welfare. Continue Reading...

Posted in Coronavirus, Healthcare, Pandemic | Also tagged , Comments Off on Title 8 vs. Title 42 — A Brief Primer on Immigration Law

Supreme Court — October Term 2022 Preview (Part 2)

The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...

Posted in Judicial | Also tagged , , , , , , , Comments Off on Supreme Court — October Term 2022 Preview (Part 2)

Supreme Court October Term 2021 — Part II

Last week, we took a look at the upcoming Supreme Court Term with a focus on the cases scheduled for the October and November argument sessions.  This week, we take a look at the cases set for December and those with no argument date yet (most likely January) with some comments on pending applications.

The big case on the December docket is Hobbs v. Jackson Women’s Health Organization — the Mississippi abortion case.  Putting the media hype to the side, the technical issue is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”   Roe and Casey both allow some pre-viability restrictions on abortion.  What they do not allow is a pre-viability ban on all abortions.  The real issue for this case will be how the majority tries to chip away at Roe and Casey to allow more restrictions on abortion.  My expectation is for some plurality opinion written by the Chief Justice or Justice Kavanaugh that makes it likely that the lower courts will nominally uphold Roe and strike down this statute while making it easier for states to regulate abortion in ways that will make it harder for women to get abortions in red states.

There are a couple of cases involving Medicare reimbursements.  One of these two cases involves issues of Chevron deference — the principle that, if a statute is ambiguous, courts should defer to the interpretation made by agency charged with applying the statute.  Conservatives have been chipping away at Chevron deference for many years.  The typical approach has been to use the tools of statutory construction to find that the statute is not ambiguous.  In this approach, Chevron deference is a tie-breaker at the end of the interpretive process, and you rarely get a tie at the end of the interpretive process. Continue Reading...

Posted in Judicial | Also tagged , , , Comments Off on Supreme Court October Term 2021 — Part II

Census Shenanigans

In theory, a President is still President with the full powers of the office until the last second of the term.  In practice, the powers of a president in the last weeks in office are somewhat limited.  Any legislative priorities that could not get through the previous Congress are unlikely to be rushed through by the new Congress.  (In fact, most times, Congress will spend much of the seventeen days between January 3 and January 20 in the necessary work of organizing rather than focusing on legislation.)

On the foreign policy front, it doesn’t take a Michael Flynn violating the law for our allies and adversaries to know that any decision made by the outgoing president can be quickly reversed by the new president.  In short, the outgoing president really is unable to make the type of long-term commitment that would encourage another country to make a deal.

So that leaves a president with actions that can be taken by the president alone.  Not surprisingly, the typical president is giving final approval to regulations and giving pardons and commuting sentences.  The enactment (or repeal) of regulations is a time-consuming process under the Administrative Procedure Act, and the new Administration is unable to simply set aside the last minute regulations.  (In part to deal with this problem, it is possible for Congress to reject these regulations.)  And a pardon or commutation is irreversible. Continue Reading...

Posted in Uncategorized | Also tagged , , , Comments Off on Census Shenanigans

October Term 2020 — Supreme Court Preview (Part One)

Last night, Justice Ruth Bader Ginsburg lost her fight against cancer.  In the upcoming days, much will be written commemorating her long fight for justice.  Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents).  But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer.  The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.

Before starting a look at the cases on the docket, three key things to note.  First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal).  That creates the possibility of a 4-4 tie.  In the case of a 4-4 tie, there are two options.  On the one hand, the Supreme Court can “affirm by an equally divided court.”  Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases.  On the other hand, the Supreme Court can set the case for re-argument when there is a full court.  It is really up to the justices to decide which option to take.   Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant.  Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney.  The audio from these arguments will be livestreamed by several news organizations.

October is likely to be the calm before the storm.  Back last Spring, the Supreme Court had to cancel the March and April argument sessions.  The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session.  That left about half of the cases that would have been heard in March or April on the docket.  Those cases are being heard in October.  The biggest case in October is probably the first case up for argument — Carney v. Adams.  This case arises from Delaware.  Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party.  So, on a seven judge court, there would likely be four Democratic judges and three Republican judges.   The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants. Continue Reading...

Posted in Civil Rights, Healthcare, Judicial | Also tagged , , , , , , , , , , Comments Off on October Term 2020 — Supreme Court Preview (Part One)

Census Sabotage

Most of the Constitution consists of “cans” and “can’ts.”  There are only a few “musts” — things that the government has to do.  One of the big musts is that, at least once every ten years” the government must conduct the census — or, as the Constitution phrases it in Article I and the Fourteenth Amendment, an enumeration of the whole number of persons in the United States.  The sole exception to being counted is “Indians not taxed.”

Now despite this plain language, Republicans do not like that persons includes those who are not citizens, particularly those who have not lawfully entered this country.  While the total number of unlawful immigrants is small, they tend to be concentrated in urban areas that elect Democrats.  (Of course, this tendency is offset by the large margins by which Democrats win urban areas.)   While there may be some electoral college disadvantages to not counting unlawful immigrants, Republicans have tended to conclude that the advantage in terms of the U.S. House and state legislatures outweighs any electoral college disadvantages.   Despite this clear command, the lawbreaker-in-chief has issued a memorandum asking the Census Bureau to exclude unlawful immigrants from the count used to apportion the House of Representatives.

Aside from the lack of legal authority for this directive, it is also unconstitutional.  Most of the arguments that I have seen out there supporting this position are simply misplaced.  Yes, other countries use different mechanisms for apportioning their legislation (for example, many use registered voters), but that is a policy argument supporting a constitutional amendment.  Policy arguments over what the Constitution should say (whether about redistricting or the electoral college) does not alter what the Constitution actually says. Continue Reading...

Posted in Uncategorized | Also tagged , , Comments Off on Census Sabotage

The Future of DACA

Earlier this month, the Supreme Court held oral arguments on the validity of President Trump’s “decision” to terminate the Deferred Action for Childhood Arrivals (DACA) program established under President Obama.  The program — limited to those brought here as children who meet certain criteria — assures participants that they will not be deported and gives them some legal rights.  President Trump — rather due to his opposition to immigrants from Latin America or his hatred for anything that President Obama accomplished — decided to terminate this program, thereby subjecting individuals who were brought here as children without proper documentation to deportation at any time that they are found by Immigration and Customs Enforcement Agency regardless of what they have done while living in the United States (either good or bad).  Various individual and agencies filed suits challenging this decision, and they prevailed in the lower courts.  The Supreme Court decided to hear three of these cases (consolidated into one argument).

Before going into the issues, it is important to note one complicating factor in this case.  Before the end of his administration, President Obama tried to create a companion program (DAPA) that would potentially have covered the parents of the participants in DACA.  That expansion was blocked in the trial court and by the Fifth Circuit (the appellate court that includes Texas).  The Supreme Court took that case, but — after oral argument — Justice Scalia died.  That left a 4-4 split on the DAPA case which means that the Supreme Court affirmed the Fifth Circuit without opinion as an “equally divided court.”  Because there was no opinion, there is no guidance on any of the relevant legal issues.  That absence cuts both ways in the current case.

The Trump Administration has two basic arguments.  First, they argue that DACA falls within the “discretionary enforcement” part of executive branch authority.  Stripped of legal jargon, agencies have limited resources.  As such, they have to make decisions about enforcement priorities and these decisions are generally not reviewable.  For example, a state prosecutor’s office in an urban area may decide that it lacks the resources to vigorously prosecute violent felonies and, therefore, decline to file routine misdemeanors believing that it would be a better use of state resources to let city prosecutors handle those matters in city court. Continue Reading...

Posted in Judicial | Also tagged , Comments Off on The Future of DACA

Supreme Court Term Preview — October 2019 (Part II)

As noted in the first part of this series, the highlights of the four-day October argument session are full days devoted to whether the term “sex” in Title VII includes sexual orientation (which might also lead to similar interpretations for other provisions barring discrimination in contexts other than employment) and to the board managing Puerto Rico’s financial issues.  With Veteran’s Day falling on a Monday this year, the November session will only have five argument days — the highlight of which will be DACA day.

DACA is not the only immigration issue in the November argument session.  The first case to be heard in that session in November 4 — Barton vs. Barr is also an immigration case.  That case involves the rules governing deportation.  Overly simplified, certain conduct authorize deportation.  However, an immigration judge can decide to cancel deportation under some circumstances.  One of those circumstances is that the immigrant has been a permanent resident for at least five years and has continuously resided in the United States for seven years.  However, for purposes of calculating that time period, that time stops when the immigrant commits an offense that would render them inadmissible.  The issue presented in Barton is whether a person who is not seeking admission can be rendered inadmissible.  (The paragraph governing “time stops” applies to both the provisions governing lawful permanent residents — who do not need to seek admission — and other immigrants like visa holders who do need to seek admission.  That same paragraph also stops the clock from running if the immigrant commits an offense that renders them removable — a concept that would apply to both lawful permanent residents and to visa holders.)  There is a logical argument for reading the paragraph in both ways, and this case will give a hint about how strictly this Court will read current immigration laws.

The other case on November 4 is a criminal law — Kansas v. Glover — case involving “reasonable suspicion.”  To grossly simplify matters, law enforcement can detain somebody for a brief period to investigate possible criminal activity including traffic offenses if they have “reasonable suspicion” that a crime is being committed.  A reasonable suspicion is basically objective reason(s) that lead the officer to believe that a crime might be in progress.  Here, the exact issue is whether the fact that the owner of a motor vehicle has a suspended license is a sufficient reason to justify stopping that vehicle to see if the owner is driving.  (In this case, the owner was driving, but the issue is not whether the officer was right.  Instead, the issue is whether the inference that the owner was driving is a reasonable inference for the officer to make.)  As you may have noticed, this case is the third criminal law-related case coming from Kansas.   The vast majority of the cases heard by the Supreme Court come from the federal courts.  Last year, the Supreme Court only took ten cases from state appellate courts, and — depending upon how you characterize some of the cases — only six involved criminal-law related issues.   For the Supreme Court to grant certiorari on three appeals from the same state in the same term is highly unusual and rarely happens even for larger states like Texas and California.  For a small state like Kansas, that is highly unusual.  On the other hand, Kansas has been gaining a reputation for loosely applying prior Supreme Court decisions (mostly in cases in which the Kansas Supreme Court has found that something about the state’s death penalty system violates the federal constitution), and Kansas has been involved in at least three major Supreme Court cases over the past twenty years. Continue Reading...

Posted in Judicial | Also tagged , , , , Comments Off on Supreme Court Term Preview — October 2019 (Part II)