🤮👨‍⚖️OUR FAILING COURTS👎🏽: Dean Erwin Chemerinsky Slams Supremes For Scofflaw, Politicized, Biased Title 42 Travesty — The Supremes’ Misconduct & Incompetence In This Case Affecting Human Lives Is Totally Unacceptable! 🏴‍☠️ — Progressives Must Take The Fight To The Neo-Fascist Right For American’s Future! — “The Supreme Court’s order is senseless!”

Dean Erwin Chemerinsky
Dean Erwin Chemerinsky
UC Berkeley Law
PHOTO: law.berkeley.edu

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=792adcfa-2c82-4cca-953c-bf1dfeb1a070

On Title 42, the Supreme Court rules for a partisan agenda

COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.

By Erwin Chemerinsky

The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.

Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.

The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.

.. . .

In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.

Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.

On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.

The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.

. . . .

The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.

In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”

The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.

. . . .

The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.

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Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!

The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around!  Likely not in my lifetime!

But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience! 

Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!

This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!

🇺🇸Due Process Forever!

PWS

01-02-23

⚖️Erwin Chemerinsky and Jeffrey Abramson in LA Times: TEACHING LAW IN THE ERA OF SCOFFLAW SUPREMES: “One critical lesson: Fight for justice, even if victory is distant!”

 

Dean Erwin Chemerinsky
Dean Erwin Chemerinsky
UC Berkeley Law
PHOTO: law.berkeley.edu

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=ae54659a-8b29-4c3e-b707-be24dd10b7d6

. . . .

So what should we tell our students? Many are dispirited and cynical because, as far into the future as they can see, this court appears likely to do more harm than good to democracy.

First, we shouldn’t hide the reality that judicial decisions often depend on who is on the bench. That has never been more true because the entrenched partisan Senate confirmation process now guarantees that a Supreme Court nominee will be chosen to carry out political and ideological aims. For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democrats.

Until recently, there were moderate liberals, such as John Paul Stevens and David H. Souter, appointed by Republicans, and there were moderate conservatives, such as Byron White and Felix Frankfurter, who had been appointed by Democrats. Trump picked three of the most ideologically conservative judges on the federal bench.

If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.

Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.

Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides. We need to teach our students how to use the power of local governments to protect fair housing, public education and public health.

Fourth, we must encourage them to look at the sweep of history. In the early 1960s, almost half the states had Jim Crow segregation laws, there were few women going to law school, and every state had a law criminally prohibiting same-sex sexual activity. The Rev. Martin Luther King Jr. was right when he said that the arc of the moral universe is long and it bends toward justice — if we work for it.

There really are just two choices: Give up or fight harder, even if there will be a lot of losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Jeffrey Abramson is professor of law and government at the University of Texas at Austin.

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Read the full article at the above link.

Sometimes, the best you can do is save as many lives as you can, one at a time. Eventually, it adds up. Also, as the article suggests, it’s critical to get involved and speak out on local political issues. That’s where the fascist far-right has made huge inroads.

🇺🇸Due Process Forever!

PWS

01-17-21

DEAN ERWIN CHEMERINSKY: GARLAND’S FAILURES @ JUSTICE GO BEYOND IMMIGRATION! — Attempting To Cover Up Your Predecessor’s Dishonesty, Ethical Lapses, & Possible Criminal Misconduct Might Be Good Bureaucracy, But It’s Bad Government! — “[T]his action is completely contrary to the public interest: The Justice Department should not be shielding itself from scrutiny.”

Judge Merrick Garland
Judge Merrick B. Garland, U.S. Attorney General —  Why is this guy . . .
Official White House Photo
Public Realm
Barr Departs
Covering up for this guy . . .    Lowering The Barr by Randall Enos, Easton, CT
Republished By License
Dean Erwin Chemerinsky
Is what this guy wants to know! — Dean Erwin Chemerinsky
UC Berkeley Law
PHOTO: law.Berkeley.edu

https://www.latimes.com/opinion/story/2021-05-27/justice-department-william-barr-mueller-memo

Dean Chemerinsky writes in the LA Times:

By ERWIN CHEMERINSKY

MAY 27, 2021 1:32 PM PT

The Biden administration is making a serious mistake in placing the self-interest of the Justice Department ahead of the people’s right to know if former Atty. Gen. William Barr acted to cover up Donald Trump’s possible engagement in obstruction of justice.

A federal judge in Washington, D.C., in early May ordered the release of a crucial Justice Department memo that will shed light on Barr’s conduct and whether he acted inappropriately. Rather than comply with the judge’s command and disclose the document, the Biden Justice Department is appealing the order in an effort to keep the memo secret.

In March 2019, special counsel Robert S. Mueller III delivered his report into Russian interference in the 2016 presidential election to then-Atty. Gen. Barr. While keeping the report secret, Barr sent a letter to congressional leaders purporting to “summarize the principal conclusions.” Barr said that Mueller “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction,” and that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” Trump then declared that he was fully exonerated.

Barr said that he had reached his conclusion “in consultation with the Office of Legal Counsel and other Department lawyers.” A Freedom of Information Act request was filed by a watchdog group to obtain the OLC memo that purportedly was the basis for Barr’s judgment that the Mueller report exonerated Trump of obstruction of justice.

A reading of the Mueller report indicates that Barr’s statements were a gross mischaracterization of the evidence it presented. There was substantial evidence that Trump had engaged in obstruction of justice and Mueller said that he offered no conclusion only because Justice Department rules prevented indicting a sitting president.

Federal Judge Amy Berman Jackson reviewed the OLC memo and concluded that there was no legal basis for withholding it from release. Indeed, she was sharply critical of the Justice Department’s arguments for secrecy. She said that the “affidavits” submitted in favor of withholding the document “are so inconsistent with evidence in the record, they are not worthy of credence.” She said that her review of the documents led her to conclude “that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege.” She said that the agency’s “redactions and incomplete explanations obfuscate the true purpose of the memorandum.”

In plain English, she slammed the Justice Department for misleading the court in trying to keep the document secret.

This issue is central to a government operating under the rule of law: Did the attorney general act to deceive Congress and the American people to protect Trump from being seen as having engaged in obstruction of justice? The OLC memo is key to understanding what happened.

. . . .

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

Read the full op-Ed at the link.

During his Senate confirmation hearings Judge Garland presented himself well and indicated a sound understanding of justice, the proper role of the Attorney General, and the public interest. However, that now appears to have been largely skillful misdirection.

Since actually being sworn in, Garland has, surprisingly and sadly, conducted business largely without regard to progressive values, expert advice, common sense, or the public interest.

How much sense does Garland’s latest attempt to cover up for the Trump regime make? https://www.theguardian.com/us-news/2021/may/29/trump-lafayette-square-protests-us-seeks-dismissal?CMP=Share_iOSApp_Other

As many of us who served at the USDOJ over the years learned, leadership often has a tendency to confuse institutional protection, political agendas, and their own self-interest with advancing the public good, which is actually the AG’s sole job.

If there is one thing the DOJ has never wanted, under any Administration, it’s public scrutiny. That’s probably why it was so easy for the Trump Administration to get cooperation from career DOJ attorneys, who should have known better, for its corrupt policies.

🇺🇸🗽⚖️Due Process Forever!

PWS

05-30-21