MARK JOSEPH STERN IN SLATE: Rule Of Scofflaws! — Trump, Sessions Have No Regard For Law Unless It Suits Their Disingenuous Purpose!

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/the_trump_administration_s_lawless_attacks_on_sanctuary_cities.html

Stern writes:

“The Trump administration’s latest attempt to punish sanctuary cities hit a snag on Friday when a federal court ruled the Justice Department cannot withhold public safety grants from jurisdictions that refuse to assist federal immigration authorities. Attorney General Jeff Sessions had attempted to prevent cities and states from receiving these funds unless they cooperatedwith immigration officials’ crackdown on undocumented immigrants. The court held that Sessions in fact has no power to attach new restrictions to the grants, rendering most of his new rules unlawful.

Mark Joseph SternMARK JOSEPH STERN

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Friday’s decision marked the second time a court has blocked Sessions’ attempts to penalize sanctuary cities by depriving them of federal grants. It also comes on the heels of a sweeping ruling that froze the most controversial provisions of Texas’ new anti–sanctuary cities bill. Earlier this month, the White House declared that Donald Trump is “restoring law and order to our immigration system.” But in their haste to adopt a restrictionist immigration regime, Trump, Sessions, and their fellow Republicans have shown a consistent disdain for federal statutes and constitutional protections.

Consider Sessions’ latest sanctuary cities imbroglio. In July, the attorney general created new criteria for Byrne Memorial Justice Assistance grants, which dispense hundreds of millions of dollars to state and local law enforcement. Under these rules, jurisdictions would not be eligible for Byrne grants unless they collaborate with Immigration and Customs Enforcement officials. Most pertinent here, law enforcement officials would have to give ICE agents access to local jails and, if the agency is interested in detaining an undocumented immigrant, notify ICE 48 hours before that person is set to be released. Chicago sued, alleging that the new rules were illegal.

Where does Sessions get the authority to impose these conditions on Byrne grants? Nowhere, as Judge Harry D. Leinenweber of the Northern District of Illinois pointed out in his ruling siding with Chicago. The Constitution grants Congress, not the executive branch, authority to impose conditions on federal funding. And Congress has never authorized the Justice Department, which is part of the executive branch, to force Byrne grantees to work with ICE. Sessions simply usurped Congress’ authority to make new rules.

When Chicago sued Sessions over the Byrne conditions in August, the attorney general put out a Trumpian statement asserting that the city “proudly violate[s] the rule of law” by protecting undocumented immigrants. But as Leinenweber explained on Friday, it was Sessions, not Chicago, who was acting lawlessly.

It’s surprising that Sessions would try to meddle with Byrne grants given that his first foray into sanctuary city–bashing failed so spectacularly. In Trump’s first days in office, the president issued an executive order directing the attorney general and Homeland Security secretary to withhold all federal grants and funding from sanctuary jurisdictions. Multiple cities quickly filed suit to defend their sanctuary policies. Sessions’ Justice Department, which apparently realized this order would violate multiple constitutional provisions, told a federal court that in reality, the order was nothing more than a narrow warning to sanctuary cities that the government would enforce current grant conditions.

In April, U.S. District Judge William Orrick blocked the order as an unconstitutional abomination. In his decision, Orrick essentially mocked the Justice Department, writing that he would not accept the DOJ’s “implausible” interpretation as it would transform Trump’s order into “an ominous, misleading, and ultimately toothless threat.” Instead, he analyzed the text of the order and found that it infringed upon constitutional separation of powers; coerced and commandeered local jurisdictions in violation of the 10thAmendment; and ran afoul of basic due process principles.

The White House promptly complained that Orrick “unilaterally rewrote immigration policy for our Nation” in an “egregious overreach.” Ironically, that is almost exactly what Trump had done through his executive order, illegally attaching new conditions to federal funds without congressional approval. Orrick had merely enforced the law; it was Trump who tried to change it unilaterally.

Neither of the Trump administration’s unlawful immigration power-grabs is as startling as SB 4, a Texas bill targeting sanctuary cities that Sessions’ Justice Department has defended in court. Confident in their measure’s legislative success, Texas Republicans turned SB 4 into a compendium of the most draconian possible attacks on sanctuary jurisdictions. The bill compelled local police to enforce immigration law, cooperate with ICE agents, and detain potentially undocumented immigrants; it also censored local officials who wished to speak out against the law. Law enforcement officers who ran afoul of SB 4 would face massive fines, jail time, and removal from office. Government employees who criticized the measure could also be fined and stripped of their positions.”

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Let’s get this straight: the “rule of law” to Sessions means laws aimed disproportionately at Latinos, Blacks, Muslims, undocumented migrants, non-white immigrants, LGBTQ individuals, ethnic communities, jurisdictions that voted for Democrats, legal marijuana users and businesses, innocent victims of civil forfeitures, and “leakers” (many would say “whistleblowers”) who are career civil servants. In other words law enforcement that in some disturbing ways parallels the “Jim Crow” laws in Alabama and other Southern States to which Sessions would apparently like to return (only with a greater emphasis on targeting Latinos, rather than Blacks, although he has little use for the latter now that the confirmation process is complete during which he “conned” a couple of Blacks into saying he wasn’t a racist.)

I remember from my youth hypocritical Southern racists like George Wallace asserting the false mantle of “the rule of law” and “states rights” for enforcing blatantly discriminatory racial laws while stomping on the actual legal and constitutional rights, and often lives, of Black citizens. Sessions has little or no intention of enforcing laws relating to civil rights protections, voting rights, protections for LGBTQ individuals, protections against local police abuses, due process for migrants in and outside of the U.S. Immigration Court process, environmental protection, constitutional conditions of detention, and ethics. Sessions is clearly a liar, if not a perjurer (which he might be) under legal definitions.

We should all be concerned that this totally unqualified and disingenuous individual has been put in charge of the U.S. justice system. I’ve commented earlier on the glaring unsuitability of individuals like Greg Abbott and Ken Paxton to be governing a state with a significant Hispanic population.

And, Stern’s article didn’t even raise Trump’s greatest and most audacious abuse of the rule of law: his totally unjustified and inappropriate abuse of the Presidential Pardon authority by pardoning the unrepentant, unapologetic “Racist Joe.” Think about what “Racist Joe” stands for, as described by a U.S. District Judge who found him guilty of contempt of court after trial for his continuing, knowing, and intentional abuses of the constitutional rights of Latino citizens and prisoners, among others. In what way does “Racist Joe” deserve a pardon? How would you feel if you were a Hispanic citizen or a detainee who had his or her constitutional rights intentionally violated and was victimized by this arrogant, bullying, racist? The innocent suffer while the guilty go unpunished. What kind of “rule of law” is that?

Then think of all the GOP “politicos” who “palled around” with “Racist Joe” and his toxic sidekick Kris Kobach and even sought their endorsements! That’s because it would help with the racist, White Supremacist “core vote” that has allowed the GOP to gain control of much of the U.S. governing structure notwithstanding the party’s extremist views and generally destructive agenda.

This is very reminiscent of how the “White Southern racist base” helped the Democrats maintain a stranglehold on government for the bulk of the mid-20th Century. Assume that the “Trump base” is 20% of the electorate and only 15% fit my foregoing description. That means without the racist White Supremacist vote, the GOP and Trump would have polled  around 31% of the popular vote, not enough to win even with the idiosyncrasies of our electoral system that favor the GOP minority!

PWS

09=19-17

DUE PROCESS: Hold Those Thoughts! Professor Lenni Benson Tells Us How Due Process Could Be Achieved In Immigration Court!

http://cmsny.org/publications/jmhs-immigration-adjudication/

Here’s an Executive Summary of Lenni’s article in the Journal on Migration and Human Security:

“The United States spends more than $19 billion each year on border and immigration enforcement.[1] The Obama administration removed more people in eight years than the last four administrations combined.[2] Yet, to the Trump administration, enforcement is not yet robust enough. Among other measures, the administration favors more expedited and summary removals. More than 80 percent[3] of all removal orders are already issued outside the court process: When the Department of Homeland Security (DHS) uses summary removal processes, both access to counsel and an immigration judge can be nearly impossible. Advocates and policy analysts are equally concerned that a backlog of over 545,000 immigration court cases creates delay that harm people seeking asylum and other humanitarian protection. Recent use of priority or “rocket” dockets in immigration court and lack of appointed counsel also interfere with the fair adjudication of claims. Thus the administrative removal system is criticized both for being inefficient and moving too slowly, on the one hand, and for moving too quickly without adequate procedural safeguards, on the other. Both critiques have merit. The challenge is to design, implement, and most critically, maintain an appropriately balanced adjudication system.

While it is clear that US removal procedures need reform, process alone will not be able to address some of the systematic flaws within the system. Ultimately, the DHS will need to refine and prioritize the cases that are placed into the system and the government needs new tools, widely used in other adjudication systems, that can reduce backlogs, incentivize cooperation, and facilitate resolution. Congress should similarly reexamine the barriers to status and avenues for regularization or preservation of status. The paucity of equitable forms or relief and the lack of statutes of limitation place stress on the immigration court system. The lack of appointed counsel has a dramatic impact on case outcomes. Without counsel, the rule of law is barely a constraint on government authority. Conversely, a system of appointed counsel could lead to efficiencies and to a culture of negotiation and settlement within the immigration court system.

DHS has increasingly used every tool in its arsenal to expeditiously remove people from the United States and most of these tools bypass judicial hearings. In these “ministerial” or expedited forms of removal, there is no courtroom, there is no administrative judge, and there are rarely any opportunities for legal counsel to participate. Moreover, there is rarely an opportunity for federal judicial review. In these settings, the rule of law is entirely within the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers who serve as both prosecutor and judge. There is little record keeping and almost no avenue for administrative or judicial review. This paper will argue that the rule of law is missing in the US removal adjudication system, and will propose ways in which it can be restored.

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[1] In fiscal year (FY) 2016, the budget for CBP and ICE was $19.3 billion. See analysis by the American Immigration Council (2017a) about the costs of immigration enforcement. The budget for the immigration court has grown only 30 percent in comparison with a 70 percent increase in the budget of the DHS enforcement.

[2] Taken from Obama removal data and comparison to past administrations (Arthur 2017).

[3] The DHS does not routinely publish full statistical data that allows a comparison of the forms of removal. In a recent report by the Congressional Research Service, the analyst concluded that 44 percent were expedited removals as described below, and an additional 39 percent were reinstatement of removals — 83 percent of all orders of removal were outside the full immigration court system (Congressional Research Service 2015).”

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And, here’s Lenni’s conclusion:

“Conclusion — A Dark Territory

Immigration law operates in the darkness beyond the reach of due process protections, accuracy, fairness, and transparency. Record numbers of immigrants live in the United States, but far too often they reside in a legal territory which the light does not reach. This essay has highlighted some of the characteristics of the US removal system. It outlines this system’s lack of substantive protections and its overreliance on hidden and expedited processes. It argues that this system needs to be redesigned to reflect the rule of law. The system needs to be exposed to the light of day.”

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Here is a link to Lenni’s complete article: Benson on Rule of Law.

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Before Jeff Sessions became the Attorney General, I wrote, with totally unjustified optimism and charity, that he could be the one person in Washington who could fix the due process problems in the U.S. Immigration Courts during the Trump Administration. http://wp.me/P8eeJm-ai.

But, sadly, it is now clear that Sessions, as his critics had predicted, is in fact “Gonzo-Apocalypto” — a relic of the past, wedded to a white nationalist, restrictionist, effectively racist (regardless of “actual intent”), anti-immigrant agenda.

So, there is no practical chance of the necessary due process reforms being made during the Trump Administration. Consequently, the “Gonzo-Apocalypto Agenda” will almost certainly drive the U.S. Immigration Court system into the ground. This will likely be followed by  a “de facto receivership” of the Immigration Courts by the Article III Courts.

But, at some point in the future, the U.S. Immigration Court will “re-emerge from bankruptcy” in some form. Hopefully, those charged with running the reorganized system will remember the thoughtful ideas of Professor Benson and others who care about due process in America.

PWS

04-30-17