⚖️😮‍💨 MR. LINCOLN 5, JEFF DAVIS 4 — Union Guts Out A Narrow Win Over Confederates Before Supremes — 4 Reb Judges Appointed By GOP Dissent! — The Erstwhile “Party Of Lincoln” Has Lost It’s Way!

Jay Kuo
Jay Kuo
American Author, Producer, CEO of The Social Edge
PHOTO: Facebook

https://statuskuo.substack.com/p/on-a-razors-edge?r=330z7&utm_medium=email

Jay Kuo writes in The Status Kuo on Substack:

On Monday, the Supreme Court lifted an injunction that had prevented the Border Patrol from cutting and removing concertina razor wire that the state of Texas had installed along a migrant crossing at the Rio Grande.

Federal officials view the razor wire as exceedingly dangerous because it could trap bodies in rapid flowing waters, leading to drownings. According to officials, last week three family members—a mother and her two children—died at the river in part because Texas guard and state troopers prevented the Border Patrol from reaching them.

The conservative Fifth Circuit had ordered the injunction put in place pending its final decision, keeping the razor wire intact. But a slim majority of the Supreme Court, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the three liberals, overruled the panel.

At stake is more than whether the Border Patrol can safely do its job and help prevent deaths like those that occurred last week. Our entire federal system is premised upon the principle that the federal government has exclusive authority to enforce border policy. States like Texas should not have the right to run interference or act as if they are the border patrol.

And yet, four extremist justices—Alito, Thomas, Gorsuch and Kavanaugh—would have left the federal government powerless for now to remove a dangerous barrier illegally erected by Texas.

The latest battle over the border should be viewed within the broader question of what is the proper role of the states when it comes to immigration. And this isn’t the only battle that Texas Governor Greg Abbott and extremist Texas Attorney General Ken Paxton have picked to try and claim more of that power for the states.

Today, I’ll discuss how the Supreme Court came to review this case about the cutting and removal of razor wire at the border. Then I’ll zoom out so we can see how this fits into a larger challenge to federal authority over immigration.

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Razor wire and the Texas federal courts

When Texas first erected razor wire at the river—the kind designed to catch clothing and tear flesh—it was roundly condemned by human rights organizations, and legal scholars quickly pointed out that Texas was acting extrajudicially. After all, at the border, it is the federal government that oversees enforcement, including what kinds of barriers to erect and how to treat and handle migrants. Many of the border crossings are by asylum seekers, and they are therefore there legally in accordance with international law.

Allowing Texas to insert itself as a state actor would upend all traditional notions of federalism and the limit of states’ rights when it comes to questions of homeland security. But a federal district judge and later the Fifth Circuit didn’t see it that way. On December 19, 2023, a panel in New Orleans temporarily barred Border Patrol agents from cutting or removing the wire in the area around Eagle Pass, with an exception for “medical emergencies.” This was a shocking opinion given its apparent disregard of settled law establishing exclusive federal power over immigration policies and execution.

U.S. Solicitor General Elizabeth Prelogar argued that the injunction barred border agents from doing their jobs, specifically, from having clear access to the U.S.-Mexico border and “reaching migrants who have already entered U.S. territory.” Moreover, the exception for medical emergencies was insufficient because it takes time to cut through the wire, and while the clock is ticking there is a “very real” risk of serious injury or death for those trapped.

Texas claimed that federal border agents were not actually apprehending and processing migrants even after they passed through the gaps in the wire that had been cut by the feds some twenty times. The state had property rights of its own, Texas argued, as well as an interest in stopping “deadly fentanyl,” human trafficking,” and to “minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.” (The fentanyl argument is a red herring; the vast percentage of fentanyl entering the country arrives not via migrants crossing the river at the border, which would be a decidedly foolish way to try and transport drugs, but through smuggling by U.S. citizens and legal residents.)

In January, Texas upped the stakes by moving to block federal agents entirely from the area where they normally launch patrol boats and conduct mobile surveillance. This contributed to the three family members’ deaths because fedeal agents had no clear access to the river. In fact, they couldn’t even determine whether a “medical emergency” was occurring, as Prelogar pointed out.

Prelogar won her appeal for the U.S. government and got the injunction lifted by the High Court, but by only a single vote.

The State of Texas keeps trying to enforce national border policy

Governor Abbott has a multi-billion dollar program in place called “Operation Lone Star” that includes massive allocation of personnel to the border, the erecting of illegal and often dangerous barriers, and most recently a new law that authorizes state and local law enforcement to arrest migrants crossing from Mexico.

This has set up yet another showdown with the federal government. That law goes into effect in March, and it is seen as a test case to challenge a 2012 case, Arizona v. United States, that narrowly left the power to determine immigration policy to the federal government, not the states.

Texas and Louisiana already lost a case where they had challenged the Biden administration’s immigration guidelines and its deportation policies. Those guidelines had been halted nationwide by a federal judge in Texas, who ruled they violated federal law. In that case, by a 5-4 decision, the Supreme Court initially and rather alarmingly had allowed the injunction to remain in place. But ultimately it ruled 8-1 in June of 2023 against Texas and Louisiana, with only Justice Alito in dissent, reaffirming the federal government’s central role on matters of immigration policy.

Where things go from here

Governor Abbott and state Attorney General Paxton remain keen to find where the new conservative majority on SCOTUS might rule their way. So they keep pushing and testing the limits. In the razor wire case, while there’s no way to know why four extremist justices dissented from the lifting of the injunction—and it conceivably could have been because the full matter will be taken up shortly anyway by the Fifth Circuit in February—the impression it has left is unmistakable.

As CNN legal analyst and University of Texas law professor Steve Vladeck observed, “Whatever one thinks of current immigration policy, it ought not to be that controversial that states cannot prevent the federal government from enforcing federal law—lest we set the stage for Democratic-led states to similarly attempt to frustrate the enforcement of federal policies by Republican presidents.” He added, “That four justices would still have left the lower-court injunction in place will be taken, rightly or wrongly, as a sign that some of those longstanding principles of constitutional federalism might be in a degree of flux.”

In response to the loss before the Supreme Court, a spokesman for Abbott put out a statement claiming that the “absence of razor wire and other deterrence strategies encourages migrants to make unsafe and illegal crossings between ports of entry.” He added that the governor “will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”

But this assertion about unsafe crossings was disputed by federal officials, underscoring the need for a single government policy. Said a White House spokesperson, “Enforcement of immigration law is a federal responsibility. Rather than helping to reduce irregular migration, the State of Texas has only made it harder for frontline personnel to do their jobs and to apply consequences under the law. We can enforce our laws and administer them safely, humanely, and in an orderly way.”

This was for now only a battle over a temporary injunction. The Fifth Circuit will next consider the full case in February, incluing whether to lift the injunction permanently. But it will do so with an understanding that five SCOTUS justices view Texas as unlikely to succeed on the merits. An appeal back up to the Supreme Court is likely, no matter which side prevails at the appellate level.

*****************

Texas’s legal argument was frivolous. The vote at the Supremes should have been 9-0. That it wasn’t should make us all fear for our country’s future as a nation that operates under the rule of law!

Jeff Davis
Jefferson Davis
Racist, traitor, insurrectionist
President of Confederate Stares of America
Public Realm
 John C. Calhoun
John C.Calhoun
White Supremacist, racist, nullifier
U.S. Vice President
Public Realm

Jeff Davis and John C. Calhoun would be proud of the dissenters — although, ironically, those two “nullifiers” wouldn’t even recognize one of the dissenters, Justice Thomas, as a “person” with any rights at all, let alone the ability to sit on our highest Federal Court! Remarkably, despite claiming to be a student of history, Thomas was unable to connect the dots between Calhoun’s and Davis’s rebellious, racist, dehumanization of African Americans and Greg Abbot’s rebellious, racist, dehumanization of legal asylum seekers of color!

The Federal Government’s authority to stop State Governments seeking to nullify and deny Federal authority matters! That’s particularly true when those acts of nullification are based on racial animus! That today’s righty-dominated Supremes won’t unite behind this straightforward principle of Federalism is a blow to equal protection under the Constitution!

🇺🇸 Due Process Forever!

PWS

01-24-23 

⚖️🗽👏 ESTHER NIEVES OF WICKER PARK, IL “GETS” THE MESSAGE OF CHRISTMAS 😇 & THE HUMANITY OF ASYLUM SEEKERS, EVEN IF OUR LEADERS (AND TOO MANY “FOLLOWERS”) DO NOT!🤯☹️👎

Description Immigrants & Refugees Welcome - Banner on Facade - Pilsen - Chicago - Illinois - USA Date Taken on 18 February 2017, 10:55 Source Immigrants & Refugees Welcome - Banner on Facade - Pilsen - Chicago - Illinois - USA Author Adam Jones from Kelowna, BC, Canada

Description Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA
Date Taken on 18 February 2017, 10:55
Source Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA
Author Adam Jones from Kelowna, BC, Canada
Creative Commons License

From the Chicago Sun Times:

https://chicago.suntimes.com/2023/11/30/23982579/migrants-families-racism-venezuela-chicago-tents-nuclear-power-plant-war-letters

Migrants are cut from the same cloth as the rest of us

One of the words I have not heard to describe migrants — but is a more accurate than the negative portrayals — is “families.”

By  Letters to the Editor   Nov 30, 2023, 5:11pm EST

With the holidays upon us, there will undoubtedly be plenty of work parties, shopping sprees with kids in tow and the ubiquitous family gatherings. The coming months will also challenge us to wear layers of clothes and wrap ourselves and our loved ones in blanket-like coats. I am fortunate to have plenty of gloves, scarves, coats and boots.

Others are less fortunate. The unfortunate ones include the “new arrivals,” most of whom have never experienced a Chicago winter. Since the migrants’ arrival, critics have taken to the airwaves offering their comments about the tents, buses, use of police stations, encroachment on city streets, and, what they believe is the destruction of the city’s social and economic fabric. Descriptions of migrants are also disconcerting: liars, troublemakers, thieves, wayward parents using their kids to manipulate the immigration system and outsiders trying to live off the municipal dough.

One of the words I have not heard but is a more accurate depiction of the new arrivals is families. The buses full of people reflect a multi-generational exit from countries steeped in turmoil and unrest: infants, children, parents, or other caretakers. Describing those who arrive as families could lead us to consider them fully human, more like us. Instead, we use words that create a chasm that places the migrants at an arm’s distance from us, society and our city.

Throughout the next month, love, joy, harmony and peace will be words we will likely hear daily in songs, written in holiday cards and celebrated in plays and movies that bring friends and families together. Some will celebrate the season by remembering the birth of a unique child. Warned to flee to ensure the safety of his wife and newborn child, the family patriarch left for other lands. Wouldn’t it be remarkable if we could see the face of this child in the faces of the children we see coming here? Perhaps we can take the first step by using words that remove the stigma and distance between us and the “new arrivals.” The words? Families, of course.

Esther Nieves, Wicker Park

********************

Yup, contrary to the absolute, hateful, BS from Trump, Johnson, and the rest of the MAGA right, and the disgraceful indifference of too many Dems, most migrants want: 1) security, 2) opportunity, and 3) a better future, particularly for family. That’s what I found over more than 13 years on the trial bench at the Immigration Court. Basically, what all of us want from life!

Migrants deserve fair, humane, dignified treatment from the U.S. and our legal system, regardless of whether they ultimately are able to meet the legal criteria to remain!

🇺🇸 Due Process Forever!

PWS

12-24-23

🏴‍☠️☠️⚰️ GOP WHITE NATIONALIST THEOCRACY THREATENS AMERICA, STARTING @ BORDER! — “Worthy of Goebbels!” — “[N]othing new. . . . It’s called fascism.” — “America’s Orbans” Undermine Liberal Democracy, Promote Illiberalism!”

Melissa Del Bosque
Melissa Del Bosque
Border Reporter
PHOTO: Melissadelbosque.com

https://substack.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.Rwn0xJ7gMZxpR5nks4NIo58FlfZsCsJm972lF9tcKws?

Melissa Del Bosque writes in the Border Chronicle:

. . . .

While this might seem uniquely cruel, Abbott is closely following the authoritarian playbook of Viktor Orbán, Hungary’s prime minister, and current European thought leader for MAGA Republicans. Donald Trump calls Orbán a friend, and White supremacist Tucker Carlson spent a week covering him for his former show on Fox, later making a “documentary” about Hungary called Hungary vs. Soros: Fight for Civilization. For the last two years, the right-wing Conservative Political Action Conference, founded in the U.S., has held a “Woke Free Zone” conference in Budapest.

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By studying Orbán’s crackdown on asylum seekers and its progression over the last several years, you can see exactly where Abbott’s Texas is headed (and DeSantis’s Florida, for that matter).

In a speech in July 2022, Orbán argued that European and non-European people should not mix. Europeans “do not want to become peoples of mixed-race,” he said. After the speech, one of Orbán’s longtime advisers quit in protest. “I don’t know how you didn’t notice that you were presenting a pure Nazi text worthy of Goebbels,” his adviser wrote in her public resignation letter. Orbán’s speech was widely condemned in Europe, and it further alienated him from other Western leaders.

But in Texas, just days after his speech “worthy of Goebbels,” Orbán was welcomed with a standing ovation at the CPAC conference in Dallas, where he touted his “zero migration” and Judeo-Christian nationalism. “The globalists can all go to hell,” he boasted. “I have come to Texas.”

On the same CPAC stage that day, Abbott followed with similar xenophobic talking points. He bragged about Operation Lone Star and encouraged conference-goers to donate to a state-run website to pay for bussing migrants out of Texas. Lieutenant Governor Dan Patrick echoed Orbán’s White Christian nationalism: “The framers did not write the Constitution,” he said. “God wrote the Constitution. We are a Christian nation.”

. . . .

Unsurprisingly, Orbán’s cruel tactics against asylum seekers, which have included kidnappings and beatings, do not deter people from coming. They are fleeing wars, after all. But Orbán has used his poisonous populism to solidify his power, just as Abbott and DeSantis are trying to do. It began with asylum seekers in 2015, but now in Hungary there is no independent media or judiciary, and the LGBTQ community and immigrants have become targets for persecution as the prime minister has consolidated his control over the government. Antisemitism is also on the rise.

This is the playbook that MAGA Republicans are following in Texas, Florida, and elsewhere. We already know how it ends. Orbán’s “illiberal democracy,” which is being lionized by Trump, Abbott, and others, is nothing new. In fact, it’s very old. It’s called fascism.

*************

Read Melissa’s complete article at the link. Nearly 80 years after the fall of the Nazi regime, Hitler’s hateful, racist, virulently anti-Semitic views are alive and well in today’s GOP. Even in Texas, a Federal Judge had no time for Abbott’s racist/absurdist claim of “invasion.” https://linkst.dallasnews.com/click/32480676.167870/aHR0cHM6Ly93d3cuZGFsbGFzbmV3cy5jb20vbmV3cy9wb2xpdGljcy8yMDIzLzA4LzIyL2ZlZGVyYWwtanVkZ2UtcmVqZWN0cy10ZXhhcy1taWdyYW50LWludmFzaW9uLWRlZmVuc2UtaW4tZG9qLWxhd3N1aXQtb3Zlci1ib3JkZXItYnVveXMvP3NhaWx0aHJ1X2lkPTYyNjgxMjQyNGY3NTdmNjRiYWUyYWEzMg/626812424f757f64bae2aa32C5a2af025.

This is NOT a “normal” American political party!

🇺🇸 Due Process Forever, White Nationalism, Never!

PWS

08-23-23

🇺🇸 BLACK HISTORY: In 1838, The Jesuits Of Georgetown University “Saved” Their School By Literally Selling Their Enslaved African-American Workers “Down The River” (In This Case, Down The Mississippi To Louisiana)! — That Fateful Decision Reverberates Today!

Slavery & Jefferson
Slavery, its wonton cruelty, negative impact on America, and the stories of the enslaved African Americans who persevered can’t ultimately be “swept under the carpet” by GOP white nationalists. 
IMAGE: Public realm

https://www.nytimes.com/2023/06/28/books/review/the-272-rachel-swarns.html?smid=nytcore-ios-share&referringSource=articleShare

David W. Blight reviews Rachel Swarns’s new book “The 272” For The NYT:

. . . .

“The 272,” Rachel L. Swarns’s deeply researched and revelatory new book, is the story of the remarkable Mahoney clan and how their lives, nearly a century and a half after Ann Joice’s, intersected with those of Mulledy, McSherry and the Jesuits in one of American slavery’s most withering tragedies. “The 272” is a fascinating meditation on the meaning of slavery and of people converted to property and commodities — assets of wealth and objects of sale. It’s a book that journeys to slavery’s heart of darkness: to the separation of families, the terror of being sold into the vast unknown and of bodies transformed into profits and investments. But it is also the moving human story of some of the people who endured and survived this ordeal, and who have long awaited rediscovery.

Swarns, a contributing writer for The New York Times and a professor of journalism at N.Y.U., is an African American Catholic who was raised on Staten Island. Beginning with an article in The Times in 2016, she revealed the story of the Jesuits as slaveholders and traders, leading to a stunning reckoning by Georgetown University with its past as well as one within the Jesuit order itself. Swarns writes with a keen eye and distinctive voice both about her Black subjects and about the hypocrisy and brutality of their onetime owners. The Jesuits were no monolith of greed and evil, however; Swarns sustains empathy for some who tried, largely unsuccessfully, to protect the enslaved people they had known so closely from the agony of sale that looms over this story.

. . . .

What comes through most effectively is the sorrow and the determination to survive of the enslaved people whom Swarns brings to light through her sleuthing and resonant prose. (Of Ann Joice, Swarns writes, “She would have no wealth, no land and no savings to leave her family, but she still had her story. … The story would be her legacy.”) Swarns also underscores the importance of Georgetown’s ongoing efforts at serious reparations for the deeds of its early leaders. An independent nonprofit, the Georgetown Memory Project, has identified around 6,000 living descendants of the original 272. In turn, the university has offered descendants formal “legacy” status for admission, sought atonement through a highly publicized apology and created a fund that would dedicate $400,000 a year to community projects, including support for health clinics and schools, likely to benefit descendants. Leaders of the Jesuit conference of priests have also vowed to establish a $100 million trust to benefit descendants and promote racial reconciliation.

No single work of history can remedy the vexing issue of repair for slavery in America, but “The 272” advances the conversation and challenges the collective conscience; without knowing this history in its complexity we are left with only raw, uncharted memory.

David W. Blight is the author of the Pulitzer Prize-winning “Frederick Douglass: Prophet of Freedom” and the forthcoming “Yale and Slavery: A History.”

******************************

Read Blight’s full review at the above link.

This is the kind of important, often intentionally buried, history that GOP white nationalists like DeSantis, Trump, and others don’t want read and honestly discussed. But, as with most artificially suppressed works, the truth will out! There are just too many people speaking it these days for even the neo-fascist censors to silence them all.

It also illuminates the heretofore unknown and unheralded stories of enslaved African-Americans like Ann Joice who, against the odds, persevered in a grotesquely unjust and horrible system so that future generations could have a chance at a better life. These are are among the real heroes of  American history who helped make our country what it is today. Their stories deserve to be told and studied.

Full disclosure: I am an Adjunct Professor of Law at Georgetown University Law School.

🇺🇸 Due Process Forever!

PWS

07-09-23

🇺🇸⚖️🗽 THE 14TH AMENDMENT IS A GENIUS 🧠 PROVISION THAT IS AT THE  HEART OF AMERICAN DEMOCRACY — That’s Why White Nativist Racists Like Trump, DeSantis, & Their GOP Supporters Are Baselessly Attacking It! 🏴‍☠️🤮 — Jamelle Bouie in The NY Times! — “If birthright citizenship is the constitutional provision that makes a multiracial democracy of equals possible, then it is no wonder that it now lies in the cross hairs of men who lead a movement devoted to unraveling that particular vision of the American republic.”

Ron DeSantis Dave Grandlund PoliticalCartoons.com Republished under license Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago!
Ron DeSantis
Dave Grandlund
PoliticalCartoons.com
Republished under license
Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago!
Jamelle Bouie
Jamelle Bouie
Columnist
NY Times

https://www.nytimes.com/2023/06/30/opinion/birthright-citizenship-trump-desantis.html?smid=nytcore-ios-share&referringSource=articleShare

Jamelle concludes:

. . . .

The birthright citizenship clause of the 14th Amendment, based on similar language found in the Civil Rights Act of 1866, was a direct response to and a rebuke of [chief Justice] Taney’s reasoning [in Dred Scott]. Having won the argument on the battlefield, the United States would amend its Constitution to establish an inclusive and, in theory, egalitarian national citizenship.

The authors of the 14th Amendment knew exactly what they were doing. In a country that had already seen successive waves of mass immigration, they knew that birthright citizenship would extend beyond Black and white Americans to people of other hues and backgrounds. That was the point.

Asked by an opponent if the clause would “have the effect of naturalizing the children of Chinese and Gypsies born in this country,” Senator Lyman Trumbull, who helped draft the language of birthright citizenship in the Civil Rights Act, replied “Undoubtedly.” Senator John Conness of California said outright that he was “ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”

In 1867, around the time Congress was debating and formulating the 14th Amendment, Frederick Douglass delivered a speech in Boston where he outlined his vision of a “composite nationality,” an America that stood as a beacon for all peoples, built on the foundation of an egalitarian republic. “I want a home here not only for the Negro, the mulatto and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours,” Douglass said. “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”

If birthright citizenship is the constitutional provision that makes a multiracial democracy of equals possible, then it is no wonder that it now lies in the cross hairs of men who lead a movement devoted to unraveling that particular vision of the American republic.

Embedded in birthright citizenship, in other words, is the potential for a freer, more equal America. For Donald Trump and Ron DeSantis, that appears to be the problem.

*****************

Read the rest of Jamelle’s outstanding article and get the real story about the 14th Amendment. It has nothing to do with the racist lies and distortions spewed forth by Trump, DeSantis, and their fellow GOP white supremacists!

As we know, Congress has failed to address the realities of immigration since the enactment of IRCA in 1986. That has inevitably led to a large, disenfranchised population of undocumented residents — essential members of our society, yet deprived of political power and the ability to reach their full potential by their “status.” Consequently, they are  subject to exploitation.

Nevertheless, this phenomenon would be much more serious without the “genius of the 14th Amendment.” Notwithstanding the failure of the political branches to address immigration in a realistic manner, the overwhelming number of the “next generation” of that underground population are now full U.S. citizens with the ability to participate in our political system and otherwise assert their full rights in our society.

Thus, because of the 14th Amendment we have avoided the highly problematic phenomenon of generations of disenfranchised Americans, essentially “stateless individuals,” forced into an underground existence. It’s not that these individuals born in the U.S., who have known no other country, would be going anywhere else, by force or voluntarily. Nor would it be in our best interests to degrade, dehumanize, and exclude generations of our younger fellow citizens as Trump, DeSantis, and the GOP far right extremist crazies advocate.

Additionally, in contradiction of traditional GOP dogma about limited government, the Trump/DeSantis charade would spawn a huge new and powerful “citizenship determining bureaucracy” that almost certainly would work against the poor, vulnerable, and individuals of color in deciding who “belongs” and who doesn’t and what documentation suffices. How many adult American citizens today who have deceased parents could readily produce definitive documentation of their parents’ citizenship?

So, notwithstanding GOP intransigence, their vile and baseless attacks on the 14th Amendment, and the lack of political will to solve and harness the realities and power of human immigration, the 14th Amendment is at work daily, solving much of the problem for us and making us a better nation, sometimes in spite of our Government’s actions or inactions. And, it performs this essential service in a manner that is relatively transparent and minimally bureaucratic for most. 

🇺🇸 Due Process Forever!

PWS

07-01-23

🇺🇸 MAINE VOICES: A “Woke” America Is A Better America, Says Don Bessey Of Old Orchard Beach — Speak Out Against the Agenda Of Hate, Marginalization, & Dehumanization Being Touted By Right-Wing Politicos & Their Followers! — “These people should not be leading our wonderful country.”

Ron DeSantis Dave Grandlund PoliticalCartoons.com Republished under license Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago!
Ron DeSantis
Dave Grandlund
PoliticalCartoons.com
Republished under license
Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago!

https://www.pressherald.com/2023/06/10/maine-voices-woke-should-not-be-a-four-letter-word/

From the Portland Press Herald:

Maine Voices: ‘Woke’ should not be a four-letter word

Being aware of how we have treated and still treat other people in our society is so important to our society’s evolving that it should be honored, not vilified.

It is frustrating to see the continuous redefining of words and terms by the extremist conservative element in our society and government. One of these terms is “woke.” According to Merriam-Webster, the definition is “aware of and actively attentive to important societal facts and issues.” I will add in the qualification as well: “especially issues of ABOUT THE AUTHOR

For my entire life I have strived to embrace this philosophy, trying to listen to and understand other opinions, beliefs and religions, whether they agreed with mine or not, understanding that one cannot fully comprehend a point of view without appreciating the counterpoint. This certainly requires personal evolution and maturity. Being aware of the true history of our country, of how we have treated and still treat other people in our society, is so important to our society’s evolving that it should be honored, not vilified.

The term “woke” has now been unjustly transformed into a negative term. Let that sink in: Attention to important facts and issues, the truth, is something to avoid and discredit. Somehow, this makes sense to a significant number of our political leaders and fellow Americans. It appears that what is most troubling for those who would see “woke” as a vile four-letter word is the qualification above, that it applies to “issues of racial and social justice.”

One of the tag lines for objecting to this thought is that it may cause someone to feel uncomfortable or criticized by being confronted with these historical facts. Personally, I strongly desire to know the truth. I am delighted – admittedly, shocked sometimes – by learning about the history we were never taught, which was suppressed to a large extent for so many years by those who perpetrated many injustices. The historical truth has never made me feel bad about myself. In fact, it is enlightening. It expands my understanding of how and why we have come to this place in our evolution. It shows me how to be better and more empathetic, and it suggests the path forward.

I believe I do understand why this can be so threatening and discomforting to so many. I believe that the truth is like a mirror to them. They see their own racist views, their distrust of anyone they perceive as being “different” as a significant threat. I feel so sad for them, since in my life, through being open to other races, ethnicities, religions and thoughts, I have learned so much and have been blessed with a much more beautiful world, life and friends.

It is extremely troubling to see elected officials, the leaders of our political parties, and fellow Americans embracing and endorsing this philosophy of derision, division and hateful rhetoric that has its roots in the cesspool of white supremacist thought.  They are leading us into the abyss of an authoritarian kakistocracy, or government by the worst of us. We must all, every rational one of us, stand and reject this thinking. We must only, and always, embrace truth, the actual facts. These people should not be leading our wonderful country.

Don Bessey is an Air Force veteran of the Vietnam War and a resident of Old Orchard Beach.

************************

Well said, Don! Thanks for speaking out so forcefully! 

Don’s views echo several previous postings from Courtside:

Walter Rhein: “When people say they are ‘anti-woke,’ I interrupt them and say ‘You mean ‘anti-black.’ They become enraged and act like they’re the victims (like racists always do).”https://wp.me/p8eeJm-8tJ

*************************

 

As [Villanova University President] Father [Peter M.] Donohue said at yesterday’s celebration,  “‘Woke’ means social justice!” https://wp.me/p8eeJm-8vF

 

🇺🇸Due Process Forever!

PWS

06-11-23

🏴‍☠️☠️ AMERICAN FASCISTS: DeSANTIS & GOP KILLING KIDS, AS FLORIDA TEACHERS VOTE WITH THEIR FEET! — “What the GOP’s vendetta against the LGBTQ community really is, is a classic authoritarian tactic to vilify already marginalized people,” Says Robert Reich!

Nazi Book Burning
Except, perhaps, in Florida and other GOP-controlled “mini-reichs” where hate, censorship, and persecution of vulnerable populations have become official policy! Is this REALLY the way the next generations of Americans want to live and be remembered by history?
PHOTO: Public Realm

How DeSantis and other GOP lawmakers are killing LGBTQ young people

And why they’re doing it

ROBERT REICH
MAY 23

Friends,

Last Wednesday, Florida Governor Ron DeSantis — who is expected to announce his campaign for the presidency as soon as tomorrow — signed a gaggle of bills targeting LGBTQ youth.

In addition to those he had already signed into law — including a “Don’t Say Gay” measure barring teachers from mentioning sexual orientation or gender identity and another prohibiting gender-affirming care — his latest laws expand the state’s prohibition on classroom instruction about sexual orientation and gender identity, require that students use bathrooms associated with their sex assigned at birth, prohibit adults from taking children to see drag shows, and bar teachers from asking students about their preferred pronouns.

Another of the bills DeSantis just signed into law allows the state of Florida to take transgender minors away from parents who help them obtain gender-affirming care.

In raging against gender-affirming care, DeSantis lied that “they’re literally chopping off the private parts of young kids.” In fact, genital surgery is rarely, if ever, done under the age of 18. It’s not even all that common for adults. DeSantis is lying about it to scare people.

pastedGraphic.png

Meanwhile, the Republican presidential frontrunner has made it clear that trans people have no place in his vision of America:

“I will sign a new executive order instructing every federal agency to cease all programs that promote the concepts of sex and gender transitions at any age. I will ask Congress to pass a bill establishing that the only genders recognized by the United States government are male and female, and they are assigned at birth.”

***

My friends, these scare tactics are dangerous. Recent analysis found a 70% increase in hate crimes against LGBTQ Americans between 2020 and 2021, as the surge of these anti-LGBTQ bills began. And that’s only counting hate crimes that get reported. The years 2020 and 2021 each set a new record for the number of trans people murdered in America.

**

pastedGraphic_1.png

The cruelest irony is that these Republican bills pretending to protect children are putting our most vulnerable children at greater risk.

LGBTQ kids are more than four times likelier than non-LGBTQ kids to attempt suicide, especially transgender young people.

Gender-affirming care reduces that risk. That is why it is life-saving.

“Don’t Say Gay” laws also strip away potentially life-saving support. A teacher who positively and respectfully discusses sexual orientation and gender identity won’t turn a straight kid gay. But such a discussion will make an LGBTQ student 23% less likely to attempt suicide

The tragic truth is that “Don’t Say Gay” laws and bans on gender-affirming care are causing more young lives to be needlessly lost.

Laws that threaten to take transgender minors away from their families if they are receiving gender-affirming care will cause these young people even more trauma.

If Republicans really cared about protecting kids, they’d focus on gun violence, now the leading cause of death for American children.

If they were really worried about children undergoing life-altering medical procedures, they wouldn’t pass abortion bans that force teens to give birth or risk back-alley procedures.

What the GOP’s vendetta against the LGBTQ community really is, is a classic authoritarian tactic to vilify already marginalized people.

This is how fascism takes root.

We need to see DeSantis’s bills and similar bills signed by Republican governors across the land for what they are — attempts to use bigotry and hate to elevate their political standing.

And we need to see this Republican attack on LGBTQ Americans for what it is: a threat to all of our human rights.

[My thanks to Allan Piper for work on a version of today’s letter.]

************************

Meanwhile, as Caleb Ecarma reports for Vanity Fair, Florida teachers have had enough:

https://www.vanityfair.com/news/2023/05/florida-education-brain-drain-hitting-schools-hard

. . . .

“For the first time, I’ve actually started talking to my investment guy about retirement,” Michael Woods, a teacher who has spent decades working in exceptional-student education for public schools in South Florida, tells me. “I’m a 30-year veteran who showed up every day, hardly calls in sick, but now I don’t want to be a teacher in Florida.” Most troubling to Woods—a gay man who teaches science and biology courses—is the ballooning list of laws that police classroom material, discriminate against LGBTQ+ educators and students, and restrict sex education. “They’re all so vague,” he says of DeSantis’s new laws. “Even things that used to be easy like human reproduction [for ninth graders], I now have to check with my co-teacher and ask, ‘Is this okay? Are we still allowed to teach this?’”

On Wednesday, the governor rubber-stamped a batch of four bills restricting LGBTQ+ rights and expanding the Parental Rights in Education Act—or, as critics have dubbed it, the “Don’t Say Gay” law. The new measures, which will be enforced at public and charter schools, ban educators from discussing sexual orientation or gender identity in pre-K through eighth grade, and place new, vague restrictions on sex education, including that such instructions “be age-appropriate or developmentally appropriate for students in accordance with state standards.”

This latest salvo was a bridge too far for many teachers, according to Rebecca Pringle, the president of the National Education Association, the largest labor union in the US. “I just talked to one teacher yesterday who is leaving and she said, ‘I can’t teach like this,’” Pringle tells me. “‘I can’t teach while worrying that they’re coming after my license, or I’m committing a felony.’ They’re leaving in protest.” Pringle says she has tried to convince teachers to stay in Florida, given the dearth of teachers in the state. But that discussion has been difficult to have, she says, with teachers who are facing death threats or harassment.

Case in point: One fifth-grade teacher in West Florida said this month that she was placed under investigation by the Florida Department of Education for showing her class Disney’s Strange World, a children’s movie that features an openly gay character. Jenna Barbee, the teacher at hand, said she played the film to give students a post-exam “brain break.” But when a local school board member learned of the showing, Barbee said, she was reported to state officials. Barbee told CNN that she had already submitted her resignation before the incident, in protest of the “politics and the fear of not being able to be who you are” in Florida public schools.

It appears that no educator has yet been prosecuted or charged under Florida’s “Don’t Say Gay” law or its legislation restricting books in schools. But as fears mount over their future implementation, parents are already witnessing the effects of shorthanded schools and overcrowded classrooms. “Last year, I saw several teachers leave, and we had substitutes for three, four months of the year,” says Reagan Miller, a parent in West Florida whose two children attend public school. “We had a teacher who taught advanced math at our middle school for years and years—he just left to go be a 911 operator,” she tells me, “which blows my mind, that becoming a 911 operator would be less stressful than being a teacher.”

. . . .

*****************************

My experience on the bench was that almost all the transgender individuals coming before me had attempted suicide on one or more occasions or expressed suicidal thoughts. To a person, they just wanted to be accepted, protected, and to live their own lives without harassment, interference, or fear. These are all things that today’s cowardly GOP “Brown Shirt Pols” would deny them. 

The next generation is going to have to decide whether they want to live in a Nazi-inspired police “hate state” where individual freedoms are meaningless and cruelty, bullying, suppression, and betrayal are the norms. If not, then they had better get busy removing every GOP politico from every office — from local school boards and city councils to the Presidency.

How soon we forget the lessons of 1939! Perhaps that’s part of the GOP’s war on truth, education, and history!

🇺🇸Due Process Forever!

PWS

05-23-23

 🏴‍☠️☠️ NAACP ISSUES TRAVEL WARNING: Florida, The Neo-Fascist “Hate State” ⚠️

 

Nina GolgowskiSenior Reporter HuffPost PHOTO: HuffPost
Nina Golgowski
Senior Reporter
HuffPost
PHOTO: HuffPost

Nina Golgowski reports for HuffPost:

The NAACPs Board of Directors has issued a travel warning about Florida that accuses the state, and pointedly Gov. Ron DeSantis, of being openly hostile toward African Americans, people of color and LGBTQ+ individuals.”

Before traveling to Florida, please understand that the state of Florida devalues and marginalizes the contributions of, and the challenges faced by African Americans and other communities of color,” the notice issued Saturday states.

The civil rights organization specifically accuses DeSantis, a possible 2024 Republican presidential candidate, of aggressively attempting to erase Black history and restrict diversity, equity, and inclusion programs in Florida schools.”

. . . .

*****************

Read Nina’s complete report at the link.

Colfax Massacre
“Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873” — White Nationalist snowflakes like DeSantis feel diminished and threatened by the truth about American history and the role of race.                                                                  

The “anti-woke agenda” touted by DeSantis is a very thinly disguised euphemism for “overtly racist!” That, decades after folks like Gov. George Wallace and Sen. Strom Thurmond unabashedly made hate, segregation, and racism the “centerpieces” of failed presidential bids, racists like DeSantis are openly campaigning on the same basic platform, and enacting it in their “mini-reichs,” should be deeply disturbing to younger generations of voters who will have to live with the stupidity, ignorance, cynicism, and hate promoted by these immoral GOP pols. It’s a race backwards and to the bottom that can only end in a complete catastrophe for our nation and the world!

Also remember: It all started with the dehumanization and false demonization of migrants. Many, including too many Dems, have been unwilling to stand up against it! That’s how the GOP’s “destroy America” agenda gains traction!

🇺🇸 Due Process Forever!

PWS

05-22-23

 

 

🇺🇸🗽⚖️ MORE CA 2 REMANDS: NDPA STARS 🌟 MOSELEY & GETACHEW LATEST TO BEST GARLAND’S MESSED UP “COURTS” — BIA Applies Wrong Standards In Yet Another CAT Case, Blows “Changed Circumstance” In Asylum Case, Overlooks & Misconstrues Evidence, Omits Analysis In Unseemly “Race To Wrongly Deny” Life Or Death Cases! — Garland Shrugs Off Legal Debacle Unfolding Every Day on His Watch!

 

The Hook
The Hook
Managers yank highly-paid big league pitchers who aren’t getting the job done! When will Garland finally “get out the hook” for his deadly underperforming BIA?
PHOTO CREDIT: © BrokenSphere / Wikimedia Commons

 

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-on-cat-standard-of-review-omorodion-v-garland

CA2 on CAT, Standard of Review: Omorodion v. Garland

Omorodion v. Garland (unpub.)

“The IJ granted Omorodion’s application for deferral of removal under the CAT and, after an initial remand by the BIA, reaffirmed that decision. In July 2018 the BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed, concluding that Omorodion did not show that she would suffer torture or that public officials would acquiesce in her torture. … First, Omorodion argues that the BIA mischaracterized and ignored key evidence. We agree. … The BIA also erred by failing to apply the clear error standard in its review of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with the acquiescence of the Nigerian government.” … The BIA erred as a matter of law when it overlooked such evidence and rejected the IJ’s predictive finding. To summarize, we grant the petition and remand because the BIA overlooked material components of the record and misconstrued others. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009). Should the BIA vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies clear error in the IJ’s factfinding based on the totality of the record. If any vacatur is not due to clear error, the BIA must otherwise “provide sufficient explanation to permit proper appellate review” of its decision. Hui Lin Huang, 3 677 F.3d at 137. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”

[Hats off to Tom Moseley!]

Tom Moseley
Thomas Moseley ESQUIRE
NPPA Icon
Newark, NJ

*************************

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-on-cat-standard-of-review-omorodion-v-garland

CA2 on Asylum, Changed Circumstances: Perez Nagahama v. Garland

Perez Nagahama v. Garland (unpub.)

“We remand for the agency to conduct the required factfinding and analysis regarding the reasonableness of Perez Nagahama’s delay in filing her asylum claim following her changed circumstances. An asylum applicant must file an asylum “application . . . within 1 year after the date of . . . arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There is an exception for “changed circumstances which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Where there is such a change, the applicant must file an application “within a reasonable period given those ‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed that Perez Nagahama’s circumstances changed materially when she began living as openly gay in April 2015. What is a reasonable period for filing after a changed circumstance is a fact-specific inquiry: IJs should make specific “findings of fact with respect to the particular circumstances involved in the delay of the respondents’ applications” to determine the reasonableness of the delay. Matter of T-M-H- & S-W-C-, 25 I. & N. Dec. 193, 195–96 (B.I.A. 2010). … Perez Nagahama has raised a reviewable question of law that the agency failed to apply the proper standard because it did not consider her specific circumstances before concluding that her delay was unreasonable. … The agency did not conduct the required factfinding and analysis. … Here, the IJ did not make findings of facts regarding the reasonableness of the delay in light of the attendant circumstances. The BIA should have remanded to the IJ to consider whether the delay was reasonable. … Instead, the BIA made its own factual determinations that Perez Nagahama beginning to live as openly gay did not make her delay reasonable and that the other facts she pointed to were not related to this underlying changed circumstance. Compounding this issue, the BIA gave no reasoning for its conclusion that the relevant circumstance made her delay unreasonable.”

[Hats off to Genet Getachew!]

**********************

Clearly, the BIA’s performance in this and other recent CA remands is far below even the “good enough for government work” mantra that prevails at Garland’s dysfunctional EOIR! Why does Garland think “NOT good enough for government work” is “good  enough for due process for ‘persons’ who happen to be foreign nationals” with the their lives at stake in his “smashed to smithereens” piece of our “justice” system? 

The only way Garland gets to where his EOIR is today is by “Dred Scottification:” That is, intentionally treating “persons” (“humans”) in his Immigration Courts as “non –persons” under the Due Process Clause of our Constitution. If that sounds like a “Stephen Miller wet dream”🤮 (grotesque as that image undoubtedly is), it’s because that’s exactly what it is! How does a Dem Administration get away with this affront to due process, equal protection, and racial justice in America?

Kind of makes me wonder what they taught at Harvard Law (Garland’s alma mater) and other so-called “elite” law schools. I daresay that virtually all law students I have encountered in teaching immigration and refugee law for a number of years at Georgetown Law would have done better than the BIA had these cases been on my final exams. 

The BIA’s inability to fairly and competently apply basic legal standards, honestly and professionally evaluate evidence of record, give asylum applicants the “benefit of the doubt” to which they are entitled under international standards, provide positive practical expert guidance on granting relief, eliminate “asylum free zones,” promote uniform outcomes, and develop and enforce “best judicial practices” is a major factor in the incredible two million case backlog that Garland has built in Immigration Court! His failure to take corrective action by replacing the BIA with competent, expert, unbiased appellate judges is a major breach of both ethical standards and his oath of office! How does he get away with it?

Thousands of asylum applicants at our border are being illegally returned to danger! Individuals with valid claims to be in the United States are routinely being denied relief for specious reasons and clear misapplications of basic legal standards in his “courts” —  powerful indicators of systemic bias that should have been forcefully addressed by Garland on “day one” of his tenure at EOIR, as experts recommended.

Garland’s victims’ lives are irrevocably ruined or even ended! Misery is inflicted on their family, loved ones, and American communities! Dedicated lawyers working overtime to save lives are mistreated by Garland’s courts and traumatized by sharing the horrible consequences to their clients of systemic inferior judging! America is denied legal immigrants we need! 

Our Federal justice system is overwhelmed with wasteful and never-ending litigation of immigration cases that should have been timely granted in the first instance and bad policies that never should have seen the light of day. In this respect, note that the IJ actually got it right in Omorodion! Then, in attempting to accommodate DHS and achieve an illegal removal, the BIA completely botched it on appeal! Even where justice prevails at the “retail” level, the BIA screws it up!

Yet Garland just shows up for work and draws his paycheck as if this were the way “justice” is supposed to work in America and fixing it is “below his pay level!” Gimmie a break!

Meanwhile, back at the ranch, many congrats and much appreciation to NDPA stalwarts Tom Moseley and Genet Getachew!

I am particularly honored to recognize the litigation greatness of my long-time friend, former INS colleague, and NDPA litigation icon 👍🏼🗽 Tom Moseley. He honed his complex litigation skills as an INS Special Assistant U.S. Attorney for the Southern District of NY during my tenure as Deputy General Counsel and Acting General Counsel at the “Legacy INS.” 

Since leaving INS decades ago, Tom has been a tower of “practical impact litigation” and “Life-Saving 101” in New Jersey and beyond. Thanks for all you do, my friend!

🇺🇸 Due Process Forever!

PWS

12-01-22

⚒️👩🏾‍🌾🌾🇺🇸🗽 AN INSPIRING LABOR DAY MESSAGE FROM REV. CRAIG MOUSIN: Migrants Are The Backbone Of America & Those Who Fight For Migrant Justice Are Not Alone — A Special Podcast With Links To Music By John McCutcheon & Emma’s Revolution!

Rev. Craig Mousin
Rev. Craig Mousin
Ombudsperson
Refugee and Forced Migration Studies, Grace School of Applied Diplomacy
DePaul University
PHOTO: DePaul Website

Dear Paul,

As we begin Labor Day weekend, I give thanks for the many ways your work and mission seek justice for all.

My latest podcast gives thanks to all of you who have worked to end Title 42 and to all those immigrants who have contributed to the common good.

As I end the podcast quoting Emma’s Revolution’s song, Bound for Freedom, I give thanks that we are not alone, but united in the struggle.  Thank you.

https://blogs.depaul.edu/dmm/2022/09/02/lawful-assembly-podcast-episode-29-gratitude-for-those-who-labor-and-those-who-have-labored/

Have a great Labor Day weekend and Thank You.

Peace,

Craig

 

Rev. Craig B. Mousin

DePaul University

(mail) 1 East Jackson Boulevard

Chicago, Illinois 60604

 

(office) Suite 800H

14E. Jackson Blvd.

Chicago, Illinois 60604

 

312-362-8707 (voice)

312-362-5706 (confidential fax)

 

 

You can find some of my publications at either:

https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=667812or

https://works.bepress.com/craig_mousin/

You can find my digital story at:https://www.youtube.com/watch?v=c9VTkjhzIcI

You can follow the podcast Lawful Assembly at:https://lawfulassembly.buzzsprout.com

******************

Thanks, Craig, for your “practical activism and scholarship!”

Takeaways:

  • Grass roots activism works to defeat the forces of darkness and White Nationalism (the defeat of the barrage of White Nationalist immigration amendments was covered on Courtside here: https://immigrationcourtside.com/2022/08/08/%f0%9f%87%ba%f0%9f%87%b8%f0%9f%97%bd%e2%9a%96%ef%b8%8fndpa-activists-help-beat-back-gop-nativist-spoiler-amendments-to-reconciliation-bill-dems-need-to-win-midterms-to-thwart-newest-gop-immi/);
  • The John McCutcheon version of Woodie Guthrie’s song “Deportees” shows how deeply ingrained “Dred Scottification” is in our country’s often unconstitutional, impractical, and sometimes immoral approach to immigration enforcement.“De-personification” of  “the other’” — treating them as numbers, statistics, even “beds” or “apps” without names, faces or rights — and making up vile myths and lies about them, all while  exploiting their labor — is still at the heart of the anti-American White Nationalist agenda!
  • Social justice activism is an important multi-disciplinary endeavor — here we see how law, education, religion, civics, history, broadcast journalism, performance art, music, technology, political science, economics, language, culture, & communication all work together to thwart hate and lies;
  • More undergraduate institutions need to be making these links and insisting that the true history of American Immigration — with all its triumphs and warts — becomes a staple of education;
  • Many of those tone-deaf (or worse) politicos pushing the far right agenda of hate, lies, and racism reflected in the defeated amendments are elitists masquerading as “bogus populists” who got the benefit of education at some of the top law schools and universities in the nation. Whatever happened to the teaching of basic legal ethics and responsibilities to society? The Jim Crow agendas of today differ little from those of the pre-civil rights era of the 20th Century. These are NOT debates between legitimate “differing viewpoints,” but essentially questions of truth vs. lies, hate v. tolerance, integration v. exploitation; 
  • The White Nationalist Right is taking over school boards and local governance in the false name of “parents’ rights” — actually meaning the rights of far right parents to impose their minority religious doctrines and false social doctrines on others. The fight for social justice begins at the local level where where teaching of truth and legitimate debates are being drowned out by disgruntled, anti-democracy, empowered White Nationalist theocrats who claim they want liberty but actually are trying to impose autocracy and minority rule;
  • The fight for social justice never ends!

🇺🇸 Happy Labor Day, & Due Process Forever!

PWS

09-05-22

🏴‍☠️CRISTIAN FARIAS @ VANITY FAIR: WHAT HAPPENS WHEN A MAJORITY OF A DEMOCRACY’S TOP JUDGES NO LONGER BELIEVE IN DEMOCRACY & ARE UNWILLING TO DEFEND IT?☠️

Cristian Farias
Cristian Farias
Writer 
Vanity Fair

https://www.vanityfair.com/news/2022/08/post-roe-scotus-is-on-a-collision-course-with-democracy

After destabilizing the nation over abortion, and moving further right on guns, climate, and religion, the conservative justices’ sights are on affirmative action, voting rights, and a fringe legal theory that could empower Trump-friendly state legislatures for future elections.

BY CRISTIAN FARIAS

AUGUST 25, 2022

On the eve of his retirement, the nation’s first Black justice and ­constitutional giant, Thurgood Marshall, took a moment to denounce the Supreme Court of the United States over its “radical” path of abandoning past decisions for no other reason than the court’s membership had changed. Owing to these shifts in personnel, Marshall charged, now “scores of established constitutional liberties” hung in the balance, the powerless were left defenseless, and the court’s own authority and legitimacy were diminished. “Power, not reason, is the new currency of this Court’s decisionmaking,” Marshall warned in 1991, in what turned out to be his final dissenting opinion.

The dissenting justices in Dobbs v. Jackson Women’s Health Organization, the watershed case that discarded nearly 50 years of American jurisprudence protecting a woman’s right to terminate a pregnancy, felt the need to quote from Marshall’s decades-old warning because power, indeed, is the only sensible explanation for the Supreme Court’s present course. The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the high court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society. Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could—and had the numbers to do so. “Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in their anguished Dobbs dissent. “All that has changed is this Court.”

As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood. Not satisfied with the erasure of just one constitutional right, Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. That future begins now. These actions and other signals make abundantly clear what Marshall foresaw: The Supreme Court is on a collision course with democracy itself. Dobbs merely sets the stage.

Every new justice creates a new court, the maxim goes. Yet for much of their time on the bench, Justice ­Samuel Alito, long a soldier in the Republican holy war to curtail abortion rights, and Thomas, an avowed Roe antagonist, had the will but not the votes to impose their antiabortion vision on the majority of the Supreme Court, much less on the rest of the country. Their fortunes, and power, changed with the election of Donald Trump, whose own marriage of convenience with white evangelicals and social conservatives paved the way for his presidency and the installation of three new justices of a different mold, all of them more extreme and lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible.

Next to this “restless and newly constituted Court,” as Sotomayor branded this new majority in June, Chief Justice John Roberts looks as weakened as ever. The Supreme Court may bear his name, and the chief may have come of age during the abortion wars of the 1980s and ’90s, but neither his title nor institutionalist bent could convince the reactionaries to his right that their ­power grab in Dobbs represented “a serious jolt to the legal system” that he simply could not join in full. Too much, too soon. To the Trump justices, plus Thomas and Alito, this shock to the nation could not come soon enough.

Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that for decades has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan have made the fall of Roe a white whale of their politics.

. . . .

***********************

Read the rest of the article at the link.

Cristian creates an interesting vignette. The Justices take a few minutes to gather to welcome Justice Ketanji Brown Jackson to the Court. Then, the Right Wing Majority goes to work ignoring her views, insuring her marginalization, and pushing a minority agenda drawing into question her very existence as a person under law. 

The conclusion of the article is perhaps most illustrative of the uncertain future of democracy, human rights, equal justice, and indeed basic human decency:

“Women are not without electoral or political power,” wrote without irony the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return.

Quite an achievement for a Court now dominated by those appointed by Presidents whose election (initial or sole) contravened the will of the majority of voters.

“Better Judges for a Better America!” Why not start with your “wholly owned and operated” Immigration Courts, Merrick Garland?

🇺🇸Due Process Forever!

PWS

08-29-22

More from today’s WashPost on the threat to our democracy posed by the anti-democracy, scofflaw GOP and their right wing judges:

William Webster and William Cohen on how today’s MAGA-infested GOP has become a cult of the lawless: https://www.washingtonpost.com/opinions/2022/08/26/mar-a-lago-fbi-attacks-lawless-gop/

E.J. Dionne on how the “off the rails, far right” GOP Supremes’ majority threatens  humanity’s future with their anti-scientific, anti-government, anti-truth far right agenda:  https://www.washingtonpost.com/opinions/2022/08/28/west-virginia-epa-inflation-reduction-act/

Jennifer Rubin on how one distinguished Senior U.S. District Judge, a Clinton appointee, stood up to the GOP’s anti-abortion overreach: https://www.washingtonpost.com/opinions/2022/08/28/federal-judge-pushback-idaho-abortion-ban/

 

FROM ROE TO DOBBS, A HALF-CENTURY DECLINE IN THE US JUDICIARY! — From Blackmun’s “Profound Lyricism” To Alito’s Snarky Far-Right Pseudo-Religious Dogma Masquerading As “Law!”  — Francine Prose in The Guardian

Francine Prose
Francine Prose
American Writer
PHOTO: Luigi Novi (2009)
Creative Commons License

https://www.theguardian.com/commentisfree/2022/jul/01/roe-v-wade-1973-ruling-supreme-court?CMP=Share_iOSApp_Other

As one more reminder of what we’ve lost, the text of the 1973 Roe v Wade ruling is unlikely to console us. Even so, I recommend downloading the pdf. In the wake of its overturning, this beautifully written document – which reads like a long form essay – is not only interesting in itself but now seems like another sign of how much has changed over the last half century, in this case for the worse.

Drafted by Justice Harry Blackmun, the ruling includes a clear and persuasive summary of the history of abortion law. “At the time of the adoption of our Constitution, and throughout the major portion of the 19th century, a woman enjoyed a substantially broader right to terminate a pregnancy that she does in most States today.” It tracks the centuries-old debate over when life begins, and dismisses the argument that a fetus is a person guaranteed the protections afforded US citizens. Throughout, it strikes us as the careful explication and clarification of a law, of legal precedent, unlike Justice Alito’s ruling in Dobbs v Jackson Women’s Health, which seems more like an expression of religious conviction masquerading as an unbiased interpretation of the constitution.

The Roe ruling is not about states’ rights. It’s about power and control | Derecka Purnell

What’s most striking about Roe v Wade – and its difference from the ruling that overturned it – is its eloquence. Blackmun’s lucid, frequently graceful language reflects a commitment to decency and compassion. The judges are clear about the dangers of carrying an unwanted child or a high-risk pregnancy to term. They strive to see the issue from the perspective of those confronting a serious life crisis, and to imagine the devastating outcomes that pregnant women and their families may face.

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“Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”

The passage I admire most is the one in which Blackmun, at once profound and lyrical, describes the atmosphere surrounding the issue of abortion, the way our opinions are formed, and the pressures that the law must acknowledge and keep in balance.

“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, poverty, and racial overtones tend to complicate and not to simplify the problem.”

And there it is: a superbly rendered catalogue of the factors that come to mind when we consider the factors that will now determine whom Dobbs will hurt most: poverty, race, and life on the raw edges of human existence – an edge, one might say, on which every decision about abortion is made.

. . . .

****************

Read the rest of Francine’s article at the link.

Let’s face it. The concern for human life of out of touch righty ideologues like Alito ends at birth. After that, the “others” are expendable — particularly if they are women or folks of color!

All their claimed concern about “personhood” ends at delivery — when it can no longer be used to threaten vulnerable pregnant women or medical professionals. After that, the GOP program for kids (whether wanted or not) consists of things like:

  • Valuing their lives below the “right” of every Tom, Dick, and Harriett in America to own and use military-style assault weapons (something that certainly wasn’t the “original intent” of the drafters of the 2d Amendment);
  • Cutting education budgets, “dumbing down” public school curriculums, and harassing teachers, school administrators, and school board members;
  • Imposing work requirements on public assistance without regard to the needs and availability of suitable child care;
  • Deporting their parents to far away countries without concern for the welfare of children (US citizen and others);
  • Declaring “war” on vulnerable kids who aren’t heterosexuals;
  • Opposing provisions that would expand the availability of health insurance to kids;
  • Spreading misinformation about life-saving vaccines for children;
  • Falsely denying climate change that threatens the world we will leave to our kids and future generations; 
  • Spreading fear and terror in ethnic communities containing “mixed families” to discourage them from taking advantage of available community services; 
  • Threatening the educational rights of non-citizen children currently guaranteed by Plyler v. Doe (but perhaps not for long, if the Clarence Thomases of the world have their way);
  • Treating kids in Immigration Court as less than “persons” entitled to full due process (for example, forcing toddlers to “represent themselves” in life or death asylum cases);
  • Separating families;
  • Detaining families and children in grossly substandard conditions;
  • Making it more difficult for people of color to vote and thus exercise their legal and political rights;
  • Being more concerned about BLM protests than in the loss of young black lives that generated them.

I could go on an on.

One essential starting place and training ground for a “new generation” of Federal Judges who will be committed to humane values, empathy, accurate historical understanding, due process, and equal justice for all is the “retail level” of our justice system — the U.S. Immigration Courts, currently controlled solely by AG Merrick Garland. That’s why Garland’s disturbing failure to instill progressive values and install scholarly progressive judges — the best, brightest, and most courageous — in his now-dysfunctional EOIR system should be of grave concern to advocates of individual choices and anyone who cares about equal justice for all and the future of our nation!

The GOP-dominated Federal Judiciary has become a tool of authoritarians and religious zealots who seek to wipe out established individual rights, reduce humanity, and insert themselves and their out of touch views into every aspect of human existence — ultimately threatening the very future of humanity! 

The Dems, by contrast, are the party of individual rights and human freedom. Too bad they haven’t done a better job of selling, and sometimes of following and boldly acting upon, their own stated values! 

🇺🇸Due Process Forever!

PWS

07-15-22 

😎⚖️🗽👍UNEXPECTED BOOST FOR DUE PROCESS & HUMANITY! — SUPREMES ALLOW BIDEN TO TERMINATE SCOFFLAW, CRUEL, FAILED “REMAIN IN MEXICO” TRAVESTY (A/K/A “LET ‘EM DIE ☠️⚰️IN MEXICO”) INITIATED BY TRUMP! — Biden v. Texas, Narrow 5-4 Majority Thwarts White Nationalist Initiative — C.J. Roberts (Opinion), joined by Justices Kavanaugh, Breyer, Sotomayor, & Kagan Save Humanity, Rule of Law, For Now! 

Here’s a link to the decision:

https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf

Here’s the Syllabus by Court staff:

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BIDEN ET AL. v. TEXAS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 21–954. Argued April 26, 2022—Decided June 30, 2022

In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential administrations, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum officially terminating it.

The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory re- turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be- cause the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA.

2

BIDEN v. TEXAS Syllabus

The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention re- sources.” Id., at 857 (emphasis in original).

While the Government’s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court’s judgment in full. With respect to the INA question, the Court of Ap- peals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.

Held: The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.

(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated 8 U. S. C. §1252(f )(1). See Garland v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not deprive this Court of jurisdiction to reach the merits of an appeal even where a lower court enters a form of relief barred by that provision. Section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.

The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief ”—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court’s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.

Cite as: 597 U. S. ____ (2022) 3 Syllabus

Statutory structure likewise confirms this conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously. See, e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Finally, this Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of the suit notwithstanding the District Court’s apparent violation of section 1252(f )(1). Pp. 8–13.

(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___, ___.

Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise- discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).

The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).

The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an

4

BIDEN v. TEXAS Syllabus

alternative means of processing applicants for admission, see 8 U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap- peals erred in holding that the INA required the Government to continue implementing MPP. Pp. 13–18.

(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or “ ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court’s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agency’s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.

The various rationales offered by respondents and the Court of Ap- peals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Re- gents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.

Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mis- match between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government’s decision to appeal the District Court’s in- junction as relevant to the question of the October 29 Memoranda’s status as final agency action. Nothing prevents an agency from under- taking new agency action while simultaneously appealing an adverse

Cite as: 597 U. S. ____ (2022) 5 Syllabus

judgment against its original action. Pp. 18–25. 20 F. 4th 928, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.

************************

Credit where credit is due. At least in this particular case, Chief Justice Roberts and the much-maligned Justice Kavanaugh probably have saved many lives of already-born humans. 

Breyer’s “Last Hurrah.” I think this was Justice Breyer’s last case, fittingly a victory for reasonableness and humanity. As of noon today, he was succeeded by Justice Ketanj Brown Jackson, the first African American female Justice! Good luck to her. I hope she can convince her right-wing colleagues to “do the right thing” on at least a few cases!

Not out of the woods yet? The case now goes back to to the 5th Circuit and a Trumpy USDJ — not the best forum for asylum applicants seeking justice. 

Will they do better? Ending the toxic, inhumane, and ineffective “Remain in Mexico Program” is one thing. Replacing it with a viable asylum adjudication system that will actually efficiently grant protection to the many refugees at our border who have been victims of a biased, anti-asylum, non-expert decision-making process is quite another. It starts with tossing the BIA and the many EOIR Judges who aren’t following asylum law and aren’t able to grant asylum and replacing them with real expert judges who can get the job done, positively guide Asylum Officers, and make sure they follow proper legal interpretations. To date, that’s been something that Garland and the Administration have been unwilling and/or unable to do — at least to the extent required to make due process, fundamental fairness, and the rule of law functional at our borders.

Glimmer of hope (maybe)? In her dissent, Justice Amy Coney Barrett went to great lengths to come up with reasons not to take jurisdiction over this “life or death” matter in its current posture. But, unlike the other three dissenters, she stated that she agreed with the majority “on the merits” of the case. That makes it at least possible that there could be as many as six potential votes for fair and humane treatment of asylum applicants by the Administration if the jurisdictional hurdle can be overcome. No guarantees. But something to think about — particularly in light of Alito’s snarky, White Nationalist nonsense and anti-immigrant myths reflected in his separate dissenting opinion. 

Alioto defines “rock bottom” judicial performance. For example, in the first paragraph of his dissent, Alito says this:

In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?

First he mis-states the law. By no means are all individuals who come to the border or are apprehended in the vicinity thereof entitled to “hearings” on admissibility. All of those without entry documents are subject to summary removal by a DHS Enforcement Agent. Only those who claim a fear of return to their home countries are entitled to an expeditious review of their claims by a (supposedly) well-trained Asylum Officer. Further, only those who establish the necessary “credible fear” of harm (or in some cases a “reasonable fear”) are entitled to have their cases for asylum determined on the merits by either an Asylum Officer or an EOIR Immigration Judge (or both). So, many of those appearing at the border are summarily removed without any hearings at all.

Thousands of those who pass credible fear and are awaiting “merits hearings” are imprisoned in DHS facilities in conditions that probably would fail constitutional scrutiny if applied to convicted felons. Those poor conditions are intended, at least in part, to demoralize and coerce individuals into abandoning claims for protection. They also exponentially decrease the chances of receiving competent pro bono representation and documenting and presenting their cases for life-preserving protection. This is significant, because they too often face EOIR judges with questionable expert judicial qualifications who are essentially “programmed to deny asylum.” Indeed, a “Garland gimmick” for recent arrivals — so-called “expedited dockets” — produced nearly 100% asylum denials as compared with the nationwide rate of 67%. For years, ICE detention centers, many of them operated by private contractors, have been notorious as places “where asylum cases go to die.” 

Contrary to the bogus implication of Alito’s statement that one has to “hope” that individuals show up for hearings, many have immigration bonds — some punatively high. When given a chance to obtain qualified representation, and thereby to understand the system and their obligations thereunder, the vast majority of asylum applicants voluntarily appear at their hearings (some many times due to the EOIR practice of  “Aimless Docket Reshuffling”), win or lose. And, perhaps not surprisingly, they succeed in winning their cases at rates that are many times higher than those forced to proceed without representation.

Indeed, a government actually interested in making the legal system work, rather than ginning up nativist myths about asylum seekers, would cut the “cruel and inhumane gimmicks” like “Remain in Mexico” and detention in the “New American Gulag” (NAG”) and instead invest in training competent pro bono or “low bono” representatives, temporarily resettling applicants to those jurisdictions with good NGOs and where the Immigration Judges are known to be scholarly and fair in evaluating asylum cases, and replacing poorly qualified Immigration Judges with experts able to competently perform these life or death functions at the “retail level” of our justice system in a fair and efficient matter consistent with due process.

Alito also repeats, apparently for prejudicial dramatic effect, the oft-used but potentially misleading figure of 1.7 million “encounters” by CBP. But, since the legal asylum system at our border was improperly dismantled by the Trump Administration, many of these represent the same individual or individuals, repeatedly encountered and illegally returned without any process whatsoever, who seek only the legal forum to present their claim to authorities to which they are entitled under both domestic and international law. This right has been systematically denied to them by both the Trump and Biden Administrations and by mal-functioning Federal Judges, at all levels, who have failed to uphold the rule of law as it applies to the most vulnerable among us. Additionally, a knowledgeable jurist would take any statistics furnished by the notoriously unreliable DHS with a “grain of salt.”

The lack of understanding of how immigration law operates, the nativist-driven misinterpretations by the Trump Administration embodied in this dissent, and the lack of intellectual integrity in furthering nativist myths and intentional exaggerations to describe a group of individuals who merely seek legal justice under both our laws and international standards is a graphic illustration of who does not belong on our highest Court. If we are really committed to equal justice and fundamental fairness in the American justice system, we should insist that all of those nominated for our Supreme Court demonstrate significant experience representing individual foreign nationals in the Immigration Courts — the “life or death retail level” of our justice system. 

Right now, those so-called “courts” are an embarrassing and dysfunctional “parody of justice” to which neither Justice Alito nor any of his colleagues would want to submit their own lives and futures or those of anyone they truly cared about. That’s the very definition of dehumanization and “Dred Scottification of the other” that Justice Alito seems so curiously eager to advance. Perhaps, that’s because he lacks the necessary empathy and perspective to see life from “the other side of the bench” as the rest of humanity does. 

I’d like to think that Alito is capable of change and growth. Most, if not all, humans are. After all, he’s appointed for life, so he isn’t going anywhere soon. But, I won’t hold my breath.

🇺🇸Due Process Forever!

PWS

06-29-30

 

🚙🏞HEADING FOR THE HILLS: RADICAL ACTIVIST, RIGHTY, GOP SUPREMES EMPOWER GUNS, STRIP WOMEN OF RIGHTS, HEAD OUT FOR SUMMER VACATION, LEAVING BEHIND CHAOS & A DARK CLOUD HANGING OVER OUR DEMOCRACY’S FUTURE!😱

Dana Milbank
Dana Milbank
Opinion Columnist
Washington Post

Dana Milbank @ WashPost:

https://www.washingtonpost.com/opinions/2022/06/25/roe-guns-supreme-court-radicals-maximum-chaos/

Nobody should be surprised that the Supreme Court’s conservative justices on Friday jettisoned nearly 50 years of precedent upon precedent in overturning Roe v. Wade. Heck, they didn’t even honor their own precedent articulated 24 hours earlier.

In their opinion Thursday morning forcing New York and other densely populated states to allow more handguns in public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions — specifically, the 1328 Statute of Northampton — “has little bearing on the Second Amendment” because it was “enacted … more than 450 years before the ratification of the Constitution.”

Yet in their ruling Friday morning in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century (and cracking the door to banning same-sex marriage and contraception), the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake — and to women as property, “inferior” to men.

The right-wing majority’s selective application of history reveals the larger fraud in this pair of landmark rulings: Their reasoning is not legal but political, not principled but partisan.

Still, there is a commonality to the rulings. Both decisions foment maximum chaos and were delivered with flagrant disregard for the instability and disorder they will cause.

Ruth Marcus: The radical conservative majority’s damage to the Supreme Court cannot be undone

The high court was meant to be the guarantor of law and order. But the conservative justices, intoxicated by their supermajority, have abandoned their solemn duty to promote stability in the law and are actively spreading real-world disruption.

Worse, this invitation to disorder comes as the nation is trying to restore the rule of law after a coup attempt led by a president who appointed three of the five justices in the abortion majority. The spouse of a fourth — Ginni Thomas, Clarence’s wife — aggressively pushed state legislators and the White House to overthrow the election. Yet Thomas, the senior associate justice, has refused to recuse himself from related cases.

After decades of crocodile tears over imagined “judicial activism,” the conservative supermajority has shed all judicial modesty and embraced radicalism. The liberal justices, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer, wrote in their Dobbs dissent that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.”

Opinion: The Supreme Court’s radical abortion ruling begins a dangerous new era

Even Chief Justice John G. Roberts Jr., who joined the gun ruling, scolded fellow conservatives for blithely overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed,” Roberts wrote. The majority’s “dramatic and consequential ruling is unnecessary,” he said, “a serious jolt to the legal system” that could have been avoided with a narrower decision that would have been “markedly less unsettling.”

Alito, in his (characteristically) sneering opinion in the abortion case, dismissed Roberts as unprincipled and public opinion as an “extraneous” concern. He likewise dismissed the pain the ruling would cause, writing that “this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’ ” He washed his hands of answering the “empirical question” of “the effect of the abortion right … on the lives of women.”

. . . .

************************

Read the rest of Milbank’s op-ed at the link.

It would be tempting to breathe a “sigh of relief” that while off on their taxpayer-underwritten summer frolic, the “Gang of 6” can’t do any more damage to our Constitution, our nation, our institutions, or humanity. But, unfortunately, that’s not completely true. If and when their party calls on them, they can always go into “emergency session.” 

So let’s hope that there will be no further “emergencies” this summer other than the disorder and divisions already caused by their disingenuous political decrees masquerading as (very thinly to tragicomically inept and inconsistent) “jurisprudence.”

Still, those who enjoy their humanity and their rights (other than gun rights)  shouldn’t get too complacent. Vacation will end; the Supremes will be back at it in October — looking for more ways to turn back the clock and “Dred Scottify the other,” even though the majority of Americans actually are “some kind of other.” With a little help from their GOP friends, they will disenfranchise and dehumanize one group at a time until rights and political power look largely like they did in 1789 — when free White men of property ruled.

As for CJ Roberts, after years of trying to put a “genial spin” on the mockery of a fair, impartial, and qualified judiciary incubating at his Supremes, he has totally lost control of the far-right extremists appointed by his party and, in some cases, pushed through the process in a highly irregular manner. Hard to have much sympathy there. 

🇺🇸Due Process Forever!

PWS

06-27-22

THE LEVIN REPORT: GOP VIEWS WOMEN AS “SEA TURTLES!”🐢

Bess Levin
Bess Levin
Politics & Finance Writer
Vanity Fair

Bess Levin @ Vanity Fair writes:

As you’ve probably heard by now, within the next few months, the Supreme Court is expected to overturn Roe v. Wade, ending the national right to an abortion. If that happens, the medical procedure will be severely restricted or just outright banned in about half the country. A lot of people are extremely upset about this because, among other things, they think the government should not get to treat 50% of the population like second-class citizens, and that pregnant people should be allowed to decide what to do with their own bodies, just like men can chose to, say, have a vasectomy without a bunch of elected officials weighing in.

 

Yet somehow Montana senator Steve Daines doesn’t seem to understand why anyone would be griping about the catastrophic, dystopian situation that is about to befall women in the U.S. In fact, Daines appears to think he’s figured out a huge “gotcha” when it comes to liberals who want to ensure women have control of their own bodies: that “the left” cares more about the eggs of certain reptiles and birds than it does about human women’s eggs. Seriously.

 

Speaking on the Senate floor Tuesday, Daines opined: “If you were to take or destroy the eggs of a sea turtle—now I said the eggs, not the hatchlings that’s also a penalty but the eggs—the criminal penalties are severe: up to a $100,000 fine and a year in prison. Now why? Why do we have laws in place that protect the eggs of a sea turtle or the eggs of eagles? Because, when you destroy an egg, you’re killing a preborn baby sea turtle or preborn baby eagle. Yet when it comes to a preborn human baby, rather than a sea turtle, that baby will be stripped of all protections in all 50 states, under the Democrats’ bill that we’ll be voting on tomorrow. Is that what the America the left wants?” (Daines was referring to the Women’s Health Protection Act, legislation that would codify the constitutional right to an abortion into federal law, which the Senate failed to pass on Wednesday.)

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Curiously, at no point in this speech lamenting that human women have too many rights compared to reptiles and birds, did Daines—who actually loves killing living things—acknowledge that humans do not lay eggs, that human embryos stay inside the mother until they are born, and that people are not endangered species. Must’ve been a mere oversight.

 

Senator Ron Johnson tells pregnant people to suck it up and drive out of state for an abortion if they want one

 

In the likely event that Roe v. Wade is gutted, countless lives will be destroyed, whether it‘s that of the rape victim who will have no choice but to give birth to her attacker’s kid, the woman living in poverty who can’t afford to raise a child, the literal child who has been impregnated by an abusive family member, or the person who simply had a different set of plans for their life that did not involve becoming a parent. Not to mention, the pregnant person who decides they have no choice but to undergo an illegal, risky abortion rather than be forced to give birth. But according to Republican senator Ron Johnson? None of this is a big deal and people are being hysterical over nothing.

 

Speaking to The Wall Street Journal, the Wisconsin lawmaker, who is up for reelection this year, said he doesn’t expect abortion to come up on the campaign trail because it’s basically a nonissue. “It might be a little messy for some people, but abortion is not going away,” Johnson said, an absolutely bizarre choice of words—not to mention, sentiment—given the history of women bleeding out and dying after unsafe abortions. He blithely added that though he doesn’t expect a 19th-century Wisconsin law banning abortions except to save the mother will go into effect if Roe is reversed, pregnant people can always go to neighboring Illinois if they want to obtain the medical procedure.

 

As so many people have noted, the reversal of Roe—and ensuing bans in numerous states—would disproportionately impact poor women and women of color. Those are people that, in fact, can’t necessarily just drive to Illinois (or the neighboring state that applies to them) because they can‘t get the time off of work, or don’t have a car, or have other children at home they can’t be away from for the night—or any of the many other reasons that Johnson apparently can’t think of. As for the idea that the 1849 Wisconsin law banning abortions won’t stand, Johnson is reportedly likely wrong about that too. As the Milwaukee Journal Sentinel wrote last week, “Republican lawmakers for decades have made sure to preserve the 1849 ban in hopes that Roe would someday be overturned,” and the Republicans running for governor in the state “have [all] strongly opposed abortion and would be unlikely to sign legislation loosening the ban.”

 

Johnson, of course, has a long history of extremely shitty takes. As one of the most vocal proponents of Trump’s “big lie,” he repeatedly downplayed January 6, variously claiming that the attempted coup wasn’t “an armed insurrection,” even though that’s exactly what it was; that the rioters were not actually Trump supporters but “provocateurs” impersonating Trump supporters; and that he was never once worried for his life because the mob that stormed the Capitol were there to overturn an election, not protest for equal rights for Black people. He’s also a major purveyor of COVID misinformation, dispenses anti-vaccine rhetoric, and was temporarily kicked off of YouTube for promoting bogus cures. In 2010, he opposed a Wisconsin bill that would have eliminated the statute of limitations for child sexual abuse victims to bring lawsuits. And four years later, he reportedly did not tell the “police, Senate or Wisconsin officials that a former aide was allegedly sexually assaulted by a state lawmaker.”

 

So yeah, it’s not surprising that he has no earthly clue why any of this is a big deal, but that doesn’t make it any less crappy. “I just don’t think this is going to be the big political issue everybody thinks it is, because it’s not going to be that big a change,” he told the Journal, like only the absolutely most ignorant elected official can.

 

Nothing to see here, just Trump’s election coconspirator telling Pennsylvania to trash absentee ballots so it’d look like Trump won

 

Apparently John Eastman saw no potential issues here, hence putting the plot in actual writing. Per Politico:

 

Attorney John Eastman urged Republican legislators in Pennsylvania to retabulate the state’s popular vote—and throw out tens of thousands of absentee ballots—in order to show Donald Trump with a lead, according to newly unearthed emails sent in December 2020, as Trump pressured GOP lawmakers to subvert his defeat. This recalculation, he posited in an exchange with one GOP state lawmaker, “would help provide some cover” for Republicans to replace Joe Biden’s electors from the state with a slate of pro-Trump electors, part of a last-ditch bid to overturn the election results.

 

Per the exchange, Eastman suggested that GOP legislators could simply cite their concerns with Pennsylvania’s absentee ballot procedures and then use historical data to “discount each candidates’ totals by a prorated amount based on the absentee percentage those candidates otherwise received.”

 

“Having done that math, you’d be left with a significant Trump lead that would bolster the argument for the Legislature adopting a slate of Trump electors—perfectly within your authority to do anyway, but now bolstered by the untainted popular vote,” Eastman wrote in a Dec. 4, 2020 email to Pennsylvania Rep. Russ Diamond. “That would help provide some cover.”

 

The suggestion to simply throw out ballots like that was a very cool, very legal thing to do came out of a batch of emails obtained via public records requests by the Colorado Ethics Institute, which reportedly sent them to the January 6 committee. Neither the panel nor Eastman’s attorney responded to Politico’s requests for comment. Back in March, a federal judge said that Trump and Eastman “most likely” committed felonies when they tried to overturn the results of the 2020. “The illegality of the plan was obvious,” Judge David Carter wrote. Even more so now!

 

Guy whose entire shtick is to ban things from the classroom now requiring lessons about the harms of communism in the classroom

 

We’re going to guess that no, Ron DeSantis does not see the irony here. Per The Guardian:

 

Discussions of gender identity and sexual preference are banned in many Florida classrooms because of governor Ron DeSantis’s “don’t say gay” law, alongside dozens of math textbooks blocked for “prohibited topics.” Now the Republican who has loudly condemned what he sees as the “indoctrination” of young people has made another subject compulsory: students must receive at least 45 minutes’ instruction every November about the “victims of communism.”

 

In a ceremony Monday at Miami’s iconic Freedom Tower, where tens of thousands of Cuban immigrants fleeing Fidel Castro’s revolution were admitted into the US between 1962 and 1974, DeSantis signed into law House Bill 395, designating 7 November as Victims of Communism Day…. The instruction will begin in the 2023-2024 school year, DeSantis said, and will require teaching about Joseph Stalin, Mao Zedong and Fidel Castro, as well as “poverty, starvation, migration, systemic lethal violence, and suppression of speech” endured under their leaderships in the Soviet Union, China and Cuba respectively.

 

Mispronouncing the name of Che Guevara as “Che Kay-Farra,” DeSantis used the ceremony to yell at students who wear T-shirts with the revolutionary leader’s image on it. “You can see at a college campus students flying the hammer and sickle from the old Soviet Union flag, you will see students that will have T-shirts with Che Guevara, you will see students that will idolize people like Mao Zedong,” he said, according to The Guardian. “That to me, this speaks of a tremendous ignorance about what those individuals represented and the evils that communism inflicted on people throughout the world…. While it’s fashionable in some circles to whitewash the history of communism, Florida will stand for truth and remain as a beachhead for freedom.”

 

Earlier this year, Florida banned public schools and private businesses from inflicting “discomfort” on white people during lessons or training about discrimination, a ridiculous law that grew out of the conservative hysteria over critical race theory. Florida, of course, now also prohibits teachers from discussing gender identity or sexual orientation in grades k–3 (and, critics say, beyond).

 

Strangely, DeSantis has not said anything about introducing a bill requiring schools to teach students about the history of petty tyrants.

 

Rep. Elise Stefanik tries her hand at comedy

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“Dehumanization” by the GOP started with the “war on immigrants” during the Trump Administration, has been enabled and furthered by GOP-appointed righty judges (see, e.g., “Dred Scottification”), and now threatens the legal and human rights of all groups that the GOP doesn’t like. That’s a big list, folks, and many of YOU and those you care about are likely on it! ☠️ 

🇺🇸Due Process Forever!

PWS

05-12-22