NEW GAME IN TOWN: “GRAND THEFT GOP” — Party Plans Biggest Heist In US History — To Be Carried Out In Broad Daylight — GOP Voters Expected To Provide Getaway Car!

https://www.washingtonpost.com/opinions/senate-republicans-ready-themselves-for-a-massive-theft-from-the-poor/2017/06/22/902a1a96-5777-11e7-a204-ad706461fa4f_story.html?hpid=hp_no-name_opinion-card-b:homepage/story&utm_term=.6918f77c4db1

Eugene Robinson writes in a Washington Post op-ed:

“The “health-care bill” that Republicans are trying to pass in the Senate, like the one approved by the GOP majority in the House, isn’t really about health care at all. It’s the first step in a massive redistribution of wealth from struggling wage-earners to the rich — a theft of historic proportions.

Is the Senate version less “mean” than the House bill, to use President Trump’s description of that earlier effort? Not really. Does the new bill have the “heart” that Trump demanded? No, it doesn’t. The devil is not in the details, it’s in the big picture.

Fundamentally, what Republicans in both chambers want to do is cut nearly $1 trillion over the next decade from the Medicaid program, which serves almost 70 million people. Medicaid provides health care not just for the indigent and disabled but also for the working poor — low-wage employees who cannot afford health insurance, even the plans offered through their jobs.

Additionally, about 20 percent of Medicaid spending goes to provide nursing home care, including for middle-class seniors whose savings have been exhausted — a situation almost any of us might confront. Roughly two-thirds of those in nursing homes have their care paid by Medicaid.

 

Why would Republicans want to slash this vital program so severely? You will hear a lot of self-righteous huffing and puffing about the need for entitlement reform, but the GOP’s intention is not to use the savings to pay down the national debt. Instead, slashing Medicaid spending creates fiscal headroom for what is euphemistically being called “tax reform” — a soon-to-come package of huge tax cuts favoring the wealthy.

That’s the basic equation in both the House and Senate bills: Medicaid for tax cuts. Both bills start with various of the taxes imposed by the Affordable Care Act, but those are mere appetizers. The main course is intended to be big cuts in individual and corporate tax rates that would benefit the rich.

There is no other point to this whole exercise. All the “Obamacare is in a death spiral” talk is Republican wishful thinking, aided and abetted by active sabotage.”

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Undoubtedly, many of those who would die or suffer needlessly as a result of the GOPs “Reverse Robin Hood” operation would be Democrats and non-voters (like children). But, many in the GOP base also fall within the group of poor and “lower middle class” folks who would be sentenced to death or suffering by the GOP. Killing off your own voters, with their support, is an interesting new twist in modern GOP politics. But, obviously Trump, McConnell, Ryan, and their Fat Cat handlers are confident in the gullibility and inability of many in their base to discern either their own or the general public’s best interests. Difficult to comprehend.

PWS

06-23-17

 

A HUMAN LIFE IS A TERRIBLE THING TO WASTE! — BUT, THAT’S EXACTLY WHAT OUR CURRENT PROGRAM OF DEPORTATIONS TO GUATEMALA IS DOING!

https://www.nytimes.com/2017/06/22/opinion/guatemala-immigrants.html?em_pos=large&emc=edit_ty_20170622&nl=opinion-today&nlid=79213886&ref=headline&te=1

Anita Isaacs writes in this NY Times op-ed:

“On a recent Wednesday, 75 Guatemalans disembarked from one of three charter flights, all full of deportees from the United States, scheduled that day. The group was led into a hangar, where authorities gave them a perfunctory welcome: a hello, a snack and bus fare to wherever they were headed.

The Guatemalan government’s relationship to the deportees ended there. Considering them a burden, even an embarrassment, the Guatemalan state and society are unable and unwilling to assist the thousands of migrants being sent back home.

Reintegrating them is no doubt a challenge. But so is doing nothing. And Guatemala and the United States have far more to gain by harnessing the economic, social and political capital these migrants bring back with them.

One reason Guatemala doesn’t do much with deportees is the widespread belief that they won’t stay for long.

On a recent visit to the country, I heard businessmen, public officials and community activists insist that Donald Trump and his wall would not intimidate aspiring migrants. But migrants aren’t wasting time, either. As a community leader told me, “Everyone is saying that they better rush now before Mr. Trump finishes his wall.”

In fact, many Guatemalans want the migrants to go back. Their return spells an end to remittances that constitute about 10 percent of the country’s gross domestic product. And returning migrants are flooding an already depressed job sector, where three-quarters of the labor force works off the books.

Not surprisingly, returning migrants aren’t particularly liked. Guatemalans figure they were sent home for breaking the law; those with tattoos are ostracized, assumed to belong to a violent street gang. Employers won’t hire them, and passers-by glance away.

Of course, such treatment becomes a self-fulfilling prophecy. Denying migrants the assistance to reintegrate economically and socially will just make the country’s problems worse.

Marginalized individuals often join street gangs in a search to belong, and drug gangs and human traffickers recruit returning migrants. They know how to get across the border; many have lived in communities where gangs and organized crime fester; and they are the Guatemalans most familiar with the United States.

While it’s true that some migrants will head back north, many have no interest. One man I know, whose remittances were used to set up a T-shirt factory that employs his 10 children in his village, is heading home for good. Older returnees, especially those who have squirreled away enough money to survive, no longer feel pulled toward the United States.

Categorizing all deportees as criminals is equally misleading. Whereas a minority are felons, many more committed misdemeanors, and the majority are guilty only of crossing the border illegally and working without a permit.

Indeed, many migrants represent an untapped resource. Most left their countries as unskilled peasants, yet through resourcefulness and hard work in the United States they acquired a diverse set of professional skills and rose through the ranks.

During my visit, I encountered bricklayers and carpenters who undertook sophisticated home renovation projects, professional landscapers who worked on golf courses, a leather craftsman who oversaw a briefcase-making business and a young sushi chef who spoke fluent English and even rudimentary Japanese. They are eager to put their skills to work in Guatemala, either by opening their own businesses or by finding a private-sector partner.

For starters, the government should provide credit and, for those in the construction and tourism industries, ease cumbersome certification requirements so that they can ply their trade immediately. It could also develop a returnee-specific “linked in” program, where returning migrants would advertise their skills, connected to an effort to match them with businesses committed to diversifying and modernizing the Guatemalan economy.

Inasmuch as the migrants could help stabilize the Central American region, the United States could also benefit from the skills of deportees. The Alliance for Prosperity, which the American government has provided funds for, aims to curb migration by alleviating poverty, lawlessness and violence. Among other things, it fosters international, public and private investments in education, health care and vocational training — goals that skilled returning migrants can help achieve.”

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Our short-sighted policies, unwillingness to invest wisely in the futures of foreign countries (beyond military and law enforcement aid), and apparent inability to look for different approaches (beyond just arrest, detain, and deport, arrest, detain, and deport) virtually guarantees a continuation of the cycle of illegal entries, reentries, and expensive, resource intensive immigration enforcement. Walls, fences, more detention centers, more DHS agents, and, yes, even more U.S. Immigration Judges are not going to solve this problem.

PWS

06-22-17

TRUMP THRILLS IOWA BACKERS BY PROMISING TO ENACT “NEW LEGISLATION” TARGETING LEGAL IMMIGRANTS THAT HAS BEEN IN THE LAW FOR MORE THAN TWO DECADES!

http://www.huffingtonpost.com/entry/donald-trump-welfare-law_us_594b5630e4b0a3a837bcef3d

Ed Mazza reports in HuffPost:

“President Donald Trump wants Congress to pass a law denying welfare benefits to immigrants for five years.

“I believe the time has come for new immigration rules which say that those seeking admission into our country must be able to support themselves financially and should not use welfare for a period of at least five years,” Trump said on Wednesday night at a rally in Cedar Rapids, Iowa.

The crowd cheered wildly at this latest example of Trump’s tough-on-immigrants rhetoric, and the president soaked in the applause.

However, such a law already exists.

As The Hill noted, the Personal Responsibility and Work Opportunity Reconciliation Act, which was signed into law by President Bill Clinton in 1996, prohibits immigrants from receiving federal benefits.

One section of the law is even titled “Restricting Welfare and Public Benefits For Aliens,” and specifically sets a five-year threshold for “federal means-tested public benefit.” The section carves out some exceptions for refugees and those granted asylum as well as veterans and active-duty military, their spouses and dependents.

Although it’s not clear how Trump’s proposed law would be different, he still vowed to enact his legislation “very shortly.”

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What can you say? I suppose you could say that you were going to “crack down on foreigners by counting to ten backwards” and Trump backers would go wild with glee. Life in the parallel universe.

But, behind all Trump’s ignorance and silliness, there is a dark motive. By making such irresponsible statements, Trump gives his backers the false impression that legal immigrants are “all on welfare” and aren’t “paying their way.” And many Trump backers will now take it as gospel that legal immigrants come into the United States and go on welfare right away, repeating it to anyone who will listen. A lie repeated often enough gains traction as having a basis in truth. So, it’s just another way of encouraging xenophobia and drumming up unjustified resentment of legal immigrants.

PWS

06-22-17

 

DREAM ON: Cornell Duo Says America Needs More Refugees To Be Really Great — They’re Right, Of Course, But Truth Is Irrelevant In The “Parallel Universe” of Trump’s America!

http://www.lawschool.cornell.edu/spotlights/Make-America-Great-Again-Admit-More-Refugees-to-the-US.cfm

Professor Stephen Yale-Loehr and Aaron El Sabrout write in honor of World Refugee Day (June 20):

“Today is World Refugee Day, a day to commemorate the strength, perseverance, and courage of displaced people around the world. Over 65 million people worldwide are forcibly displaced from their homes, the highest number since World War II. Turkey alone has accepted nearly 3 millionrefugees from Syria.

In our current political climate, some consider refugees a security threat and a drain on national resources. But America benefits economically, socially, and morally by accepting more refugees.

A new study by the National Bureau of Economic Research shows that after six years in the United States, refugees work at higher rates than citizens. A similar 2016 study by the Tent Foundationfound that refugees fill gaps in the labor market, work harder to learn skills and languages than economic migrants, and have a “dynamic” impact on growth.

The myth that refugees drain a nation’s economic resources is false. Yes, refugees initially require a substantial resettlement cost (approximately $15,000), and often initially need welfare services. However, after eight years in the United States, refugees receive welfare at the same rate as U.S. citizens with similar education and language skills. Over a 20-year period, refugees in the U.S. pay an average of $21,000 more in taxes than the initial cost of resettling them. In fact, a study by Texas A&M professor Kalena Cortes shows that over time, refugees tend to out-earn other immigrants and add more value to the economy than the initial cost of resettling them. For example, Vietnamese-Americans, many of whom arrived as refugees, tend to be more financially stable and more employed than the average American, and therefore less likely to need welfare benefits.

Refugees play a key role in creating new jobs and raising overall wages. This is in part because they are more likely than other groups to open small businesses, creating new jobs rather than taking old ones. For example, refugees were a major factor in stabilizing the economy of Utica, NY, because they filled important gaps in the labor force and created greater economic demand for goods.Even when refugees do low-skilled work, they do not displace American workers. A study by scientists at the University of California, Davis and the University of Copenhagen found that an influx of low-wage immigrant labor tends to raise wages for everyone.

Refugees also contribute tremendously to innovation and growth. Examples of famous refugees or children of refugees who have advanced U.S. culture and knowledge include Marc Chagall, Gloria Estefan, Madeleine Albright, Henry Kissinger, Enrico Fermi, Steve Jobs, and Albert Einstein.

That history is in jeopardy. President Trump issued an executive order in March slashing refugee admissions from 110,000 to 50,000 this year and temporarily suspends all refugee admissions. That order, which federal courts have temporarily blocked, insults our history and our legacy. We have a precedent of being welcoming and gracious. That precedent is not just rooted in altruism; accepting refugees is good for America. It’s time to step up and embrace our history of welcoming people fleeing persecution around the world. As a country, we have an economic and moral imperative to be what we once promised we would be: a refuge for the world’s huddled masses, yearning to breathe free.”

______

Stephen Yale-Loehr is Professor of Immigration Law Practice at Cornell Law School, where he co-directs an asylum clinic. Aaron El Sabrout is a law student at Cornell Law School.

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Sorry, Steve & Aaron. Truth, values, morality, and simple human decency play no role in this debate. Refugees are foreigners, many with different religions, other cultures, other languages, and non-white skins (we wouldn’t seriously be having this debate if all refugees were white, English speaking, Christians from, say, Australia, Canada, the UK, and New Zealand). So in the world of Trump, his Xenophobic (and sometimes also racist) followers, and their GOP “fellow travelers” that’s all you need to know.

It’s not really about making America Great or keeping us safe; it’s about building political power by stoking xenophobia and unjustified resentment. And, the target is by no means just refugees and other migrants. No, it’s also about ginning up resentment against American citizens of Hispanic, Black, Arabic, and to some extent Asian American descent. Not coincidentally, these ethnic groups often are thought to vote more for Democrats than the GOP.

Happy Refugee Day!

PWS

06-22-17

BREAKING: GOP SENATORS ANNOUNCE PLAN TO TRASH HEALTH CARE FOR 10S OF MILLIONS OF AMERICANS, FUND MORE TAX BREAKS FOR RICH CRONIES! — Why? — Because They CAN!

http://www.slate.com/articles/news_and_politics/politics/2017/06/why_the_gop_would_pass_an_objectively_bad_health_care_bill.html

 writes in Slate:

“It is difficult to overstate the sheer unpopularity of the American Health Care Act, the Republican Party’s plan to “repeal and replace” the Affordable Care Act. And it’s not hard to understand why the bill is so unpopular. What’s mystifying is why Republicans insist on passing it, acting as if there won’t be political consequences for a plan that promises pain for tens of millions of Americans.

Jamelle BouieJAMELLE BOUIE

Jamelle Bouie is Slates chief political correspondent.

At Obamacare’s least popular moment, in the fall of 2014, 56 percent of Americans held a negative view of the law, versus 37 percent who approved. Compare that with the Republican version of the AHCA that passed the House of Representatives in early May. In a recent survey from CBS News, 59 percent of Americans disapprove of the GOP proposal, versus 32 percent who approve. A Roper Center analysis shows the proposal with just 29 percent support, making it the most unpopular piece of legislation Congress has considered in decades. And its unpopularity isn’t just a function of blue states like California, New York, and Illinois—there is no state in the union where a majority of voters support the bill.

If the AHCA ends up improving outcomes for Americans—if it delivers affordable health insurance or protects families from medical bankruptcy—it might recover some popularity in the implementation, as was true with the Affordable Care Act, which now has majority support. But we know from the Congressional Budget Office’s evaluation of the House bill that it would increase the number of uninsured by an estimated 23 million people; there are no signs the Senate version will be any less damaging. What’s more, the AHCA may upend the employer health market as well; its deregulatory measures could result in lifetime limits and substantially higher out-of-pocket costs for people who receive insurance through work. The universe of people potentially left worse off by the Republican bill is close to a cross-section of the American public: salaried employees, ordinary workers who rely on the Obamacare exchanges, and the millions of low-income people, children, elderly, and disabled Americans who rely on Medicaid.

Under most circumstances, this would be the ballgame. As a general matter, lawmakers don’t pass hugely unpopular legislation that might harm constituents in such a direct way. It’s easy to say that, for House and Senate Republicans, their “constituents” are those wealthy Americans who receive huge tax cuts under the bill. Still, it’s also true that winning donors isn’t the same as winning elections. Politicians don’t need to value the public interest to reject a bill like the AHCA; a survival instinct should be enough.

Which gets to what’s mystifying about the present situation. If the health care bill becomes law, there’s every indication the Republican Party will suffer for passing it. It is already responsible for a substantial and so-far enduring decline in the president’s approval rating, and it is fueling grass-roots opposition to the already-unpopular Trump administration. If Republicans face an increasingly difficult environment for the 2018 general election, it is at least in part because of the AHCA. And yet, Republicans are intent on passing the bill. Senate Majority Leader Mitch McConnell has cannily adopted an unprecedentedlysecretive process meant to insulate the proposal from criticism and expedite its passage. There have been no hearings and no debate. The plan, as it exists, is for a one-week period of public input before Congress votes.

It’s likely that Republicans know the bill is unpopular and are doing everything they can to keep the public from seeing its contents before passing it. As we saw with the Affordable Care Act, the longer the process, the greater the odds for a major backlash. But this presupposes a pressing need to pass the American Health Care Act, which isn’t the case, outside of a “need” to slash Medicaid, thus paving the way for large-scale, permanent tax cuts. The Republican health care bill doesn’t solve any urgent problem in the health care market, nor does it represent any coherent vision for the health care system; it is a hodgepodge of cuts and compromises, designed to pass a GOP Congress more than anything. It is policy without any actual policy. At most, it exists to fulfill a promise to “repeal Obamacare” and cut taxes.

Perhaps that’s enough to explain the zeal to pass the bill. Republicans made a promise, and there are forces within the party—from hyperideological lawmakers and conservative activists to right-wing media and Republican base voters—pushing them toward this conclusion. When coupled with the broad Republican hostility to downward redistribution and the similarly broad commitment to tax cuts, it makes sense that the GOP would continue to pursue this bill despite the likely consequences.

But ultimately it’s not clear the party believes it would face those consequences. The 2018 House map still favors Republicans, and the party is defending far fewer Senate seats than Democrats. Aggressively gerrymandered districts provide another layer of defense, as does voter suppression, and the avalanche of spending from outside groups. Americans might be hurt and outraged by the effects of the AHCA, but those barriers blunt the electoral impact.

The grounds for political combat seem to have changed as well. If recent special elections are any indication—where GOP candidates refused to comment on signature GOP policies—extreme polarization means Republicans can mobilize supporters without being forced to talk about or account for their actual actions. Identity, for many voters, matters more than their pocketbooks. Republicans simply need to signal their disdain—even hatred—for their opponents, political or otherwise. Why worry about the consequences of your policies when you can preclude defeat by changing the ground rules of elections, spending vast sums, and stoking cultural resentment?

It seems, then, that we have an answer for Republicans insist on moving forward with the American Health Care Act. Because they can. And who is going to stop them?”

Here’s some analysis of the GOP Senate Bill from the Washington Post:

“The Senate proposal largely mirrors the House measure with significant differences, according to a discussion draft circulating Wednesday among aides and lobbyists. While the House legislation would peg federal insurance subsidies to age, the Senate bill would link them to income, as the ACA does.

The Senate measure would cut off expanded Medicaid funding for states more gradually than the House bill but would enact deeper long-term cuts to the health-care program for low-income Americans. It also would eliminate House language aimed at prohibiting federally subsidized health plans from covering abortions, a provision that may run afoul of complex Senate budget rules.

But McConnell faces the prospect of an open revolt from key conservative and moderate GOP senators, whose concerns he has struggled to balance in recent weeks. Republicans familiar with the effort said Senate leaders have more work to do to secure the 50 votes needed to pass the measure, with Vice President Pence set to cast the tiebreaking vote, from the pool of 52 GOP senators. No Democrats are expected to support the bill.

According to two Republicans in close contact with Senate GOP leadership granted anonymity to describe private conversations, McConnell is threatening to bring the bill to a vote next week even if he doesn’t have the votes to pass it. But some believe that message is aimed at trying to pressure Republicans to support the bill, rather than an absolute commitment. A McConnell spokeswoman declined to comment.

Republican aides stressed that their plan is likely to undergo more changes to secure the votes needed for passage, but there were major concerns Wednesday from senators on opposite ends of the GOP spectrum.

“My main concern is I promised voters that I would repeal — vote to repeal Obamacare. And everything I hear sounds like Obamacare-lite,” said Sen. Rand Paul (R-Ky.).

Sen. Shelley Moore Capito (R-W.Va.), whose state expanded Medicaid and has been pushing for a more gradual unwinding of that initiative than many conservatives prefer, said she is waiting to scrutinize what is released but has not seen anything yet that would make her drop her concerns with the proposal.

“Up to this point, I don’t have any new news — tomorrow we will see it definitively — that would cause me to change that sentiment,” she said.

Like the House bill, the Senate measure is expected to make big changes to Medicaid, the program that insures about 74 million elderly and lower-income Americans and was expanded in most states under the ACA. In effect, the revisions would reduce federal spending on the program.

The Senate measure would transform Medicaid from an open-ended entitlement to one in which federal funding would be distributed to states on a per capita basis. The Senate measure would also seek to phase out the program’s expansion — although at a more gradual rate than the House version.

Yet the Senate bill would go further than the House version in its approach to cutting Medicaid funding in the future. In 2025, the measure would tie federal spending on the program to an even slower growth index than the one used in the House bill. That move could prompt states to reduce the size of their Medicaid programs.”

Here’s a link to the complete Post article: https://www.washingtonpost.com/powerpost/senate-gop-leaders-set-to-unveil-health-care-bill/2017/06/22/56dbe35c-5734-11e7-a204-ad706461fa4f_story.html?hpid=hp_rhp-top-table-main_healthcare835am%3Ahomepage%2Fstory&utm_term=.31690d0232b7

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As long as folks stubbornly keep voting for their own demise, that is, against their own best interests, Trump and the GOP are going to take them to the cleaners every time. The GOP Congressional leadership has “bought into” the Trump “Time Square” theory:   “There’s absolutely nothing that we could do that would make these folks vote against us. And, we’re going to take full advantage of them by sticking it to them just like they were Democrats or minorities (or both).”

I suppose if it works, why not line your pockets (and those of your buddies) to the full extent possible at the expense of the People until the party ends (which it might never do — and, if it does, the GOP will be laughing all the way to the bank)?

PWS

06-22-17

BREAKING: SUPREMES BODY SLAM DOJ IN NATZ CASE — MISREPRESENTATION MUST BE “MATERIAL” — Maslenjak v. United States — Total Justices Voting For DOJ Position = 0 (ZERO)!

Here’s the Court’s Syllabus (NOT part of the decision);

SUPREME COURT OF THE UNITED STATES

Syllabus

MASLENJAK v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 16–309. Argued April 26, 2017—Decided June 22, 2017

Petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990’s, when a civil war divided the new country. In 1998, she and her family sought refugee status in the United States. In- terviewed under oath, Maslenjak explained that the family feared persecution from both sides of the national rift: Muslims would mis- treat them because of their ethnicity, and Serbs would abuse them because Maslenjak’s husband had evaded service in the Bosnian Serb Army by absconding to Serbia. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status. Years later, Maslenjak applied for U. S. citizenship. In the application process, she swore that she had never given false information to a government of- ficial while applying for an immigration benefit or lied to an official to gain entry into the United States. She was naturalized as a U. S. cit- izen. But it soon emerged that her professions of honesty were false: Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army.

The Government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). According to the Government’s theory, Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The District Court instructed the jury that, to secure a conviction un- der §1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. The Sixth Circuit affirmed the convic- tion, holding that if Maslenjak made false statements violating

2 MASLENJAK v. UNITED STATES Syllabus

§1015(a) and procured naturalization, then she also violated §1425(a).

Held:
1. The text of §1425(a) makes clear that, to secure a conviction, the

Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” speci- fies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtain- ing of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.

The Government’s contrary view—that §1425(a) requires only a vi- olation in the course of procuring naturalization—falters on the way language naturally works. Suppose that an applicant for citizenship fills out the paperwork in a government office with a knife tucked away in her handbag. She has violated the law against possessing a weapon in a federal building, and she has done so in the course of procuring citizenship, but nobody would say she has “procure[d]” her citizenship “contrary to law.” That is because the violation of law and the acquisition of citizenship in that example are merely coincidental: The one has no causal relation to the other. Although the Govern- ment attempts to define such examples out of the statute, that effort falls short for multiple reasons. Most important, the Government’s attempted carve-out does nothing to alter the linguistic understand- ing that gives force to the examples the Government would exclude. Under ordinary rules of language usage, §1425(a) demands a causal or means-end connection between a legal violation and naturaliza- tion.

The broader statutory context reinforces the point, because the Government’s reading would create a profound mismatch between the requirements for naturalization and those for denaturalization: Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later. For example, lies told out of “embarrassment, fear, or a desire for privacy” (rather than “for the purpose of obtaining [immigration] benefits”) are not generally dis- qualifying under the statutory requirement of “good moral charac- ter.” Kungys v. United States, 485 U. S. 759, 780; 8 U. S. C. §1101(f)(6). But under the Government’s reading of §1425(a), any lie told in the naturalization process would provide a basis for rescinding citizenship. The Government could thus take away on one day what

Cite as: 582 U. S. ____ (2017) 3

Syllabus

it was required to give the day before. And by so unmooring the rev- ocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which this Court would need far stronger textual support to believe Congress intended. The stat- ute Congress passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturaliza- tion process, but only when that act played some role in her naturalization. Pp. 4–9.

2. When the underlying illegality alleged in a §1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship. Because the entire naturalization process is set up to provide little room for subjective pref- erences or personal whims, that inquiry is properly framed in objec- tive terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.

If the facts the defendant misrepresented are themselves legally disqualifying for citizenship, the jury can make quick work of that inquiry. In such a case, the defendant’s lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lies had the requisite bearing on a naturalization decision, because lies can also throw investigators off a trail leading to disqualifying facts. When relying on such an investigation-based theory, the Government must make a two-part showing. Initially, the Government must prove that the misrepresented fact was suffi- ciently relevant to a naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Kungys, 485 U. S., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investiga- tion would have unearthed a disqualifying fact. It need only estab- lish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s mis- representation contributed to the citizenship award in the way §1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found.

When the Government can make its two-part showing, the defend- ant may overcome it by establishing that she was qualified for citizenship (even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a

4

MASLENJAK v. UNITED STATES Syllabus

thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a). Pp. 10–15.

3. Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand. Pp. 15–16.

821 F. 3d 675, vacated and remanded.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in the judgment.

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

Interestingly, Justice Gorsuch, in his first immigration-related decision, wrote a separate concurring opinion agreeing with the majority that a misrepresentation must be “material” but indicating that he would not have gone on to attempt to articulate a test for “materiality.”

Doubt that the Government’s max-enforcement effort in the Federal Courts is out of touch with reality and the law? Try this: With a supposedly conservative majority Supreme Court, the Gov has lost two recent cases this one and Esquivel-Quintana v. Sessions(http://immigrationcourtside.com/2017/05/31/led-by-justice-thomas-unanimous-supremes-reject-usgs-attempt-to-deport-mexican-man-for-consensual-sex-with-a-minor-strict-interpretation-carries-the-day/) by a total vote of 17-0. Yes, that’s right, 17-0! Not one Justice has sided with any of the nonsense that the Solicitor General has advanced on behalf of Government overreach on immigration enforcement. Justice Thomas even wrote the unanimous opinion in Esquivel (Justice Gorsuch sat that one out).

And, remember that these were positions developed and defended by the DOJ under the Obama Administration.

PWS

06-22-17

SURPRISE: PLATO LIVES! — Philosophers Often Turn Out To Be Kings (& Queens) Of Business & Professions!

https://www.washingtonpost.com/local/education/for-philosophy-majors-the-question-after-graduation-is-what-next/2017/06/20/aa7fae2a-46f0-11e7-98cd-af64b4fe2dfc_story.html?utm_term=.db0db771aaec&wpisrc=nl_buzz&wpmm=1

From the Washington Post:

“Philosophy majors spend their college years pondering deep questions, such as: What is the meaning of life? Do we have free will? And what job am I going to get with this degree after graduation?

It turns out the last question isn’t hard to answer: Just about anything.

The idea that philosophy majors aren’t prepared for professional careers “is a little bit of a myth, to be honest,” said Thomas Holden, chair of the philosophy department at the University of California at Santa Barbara. “Philosophy is not about sages sitting on mountaintops speculating about the cosmos.”

Graduates in philosophy inhabit Wall Street corner offices, roam the oak-paneled halls of the Supreme Court and reign over boardrooms in Silicon Valley.

Interest in the major has risen steadily in the past three decades. Although totals have dipped slightly in recent years, federal education data shows the number of students who received bachelor’s degrees in philosophy has doubled since 1987, peaking at 7,926 graduates in 2013.”

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

Gee whiz! Who would ever have thought that teaching sound reasoning, critical analysis, effective argument, skillful defense of ideas, and creative problem solving skills could be useful in the “real” world? Certainly not the many politicos and supposed educational and business wonks who trash the liberal arts and glorify “trade school” education for everyone.

The world is a rapidly changing place.  And, folks who learn how to think, solve problems, and maintain a big picture perspective usually have the flexibility to “reinvent” themselves as necessary, even as their technical knowledge and skills become outdated or obsolete. And, intellectual curiosity and engagement are things that help outside the workplace or when things at work get rough. Critical thinking and creative problem solving are just as important for good mechanics, carpenters, plumbers, and brick masons as they are for chief execs, scientists, doctors, and lawyers.

Yesterday, I dropped by to see my good friend and colleague (and contributor to immigrationcourtside.com, http://immigrationcourtside.com/2017/06/19/the-hill-professor-andy-schoenholtz-of-georgetown-law-on-why-americans-should-be-grateful-to-the-9th-circuit-for-upholding-the-rule-of-law-against-executive-overreach/)  at Georgetown Law, Professor Andy Schoenholtz. I caught him “red-handed” perusing a tome of Immanuel Kant. He tried to cover up by claiming that he was just “cleaning out his bookcase.” But, of course, we know the truth (to the extent, of course, that absolute truth can ever be “known’).

No wonder Schoenholtz has accomplished so much in the real world as well as the academic world!

PWS

06-21-17

 

 

 

POLITICS: According To The Polls & Mainstream Media, Trump Is Historically Unpopular & The GOP Can’t Govern — But, That’s News To Actual Voters Who Continue To Prefer The GOP To Dems!

Upset, schmupset, the four consecutive House races that Dems have lost in the “Trump” era are exactly the types of elections they are going to have to consistently win to retake power. Yes, it’s an improvement for our system when there are more competitive races, and it’s good for Dems that they are actually taking races in “GOP Territory” seriously.

But, in Georgia, the Democratic Candidate John Ossoff actually ran behind Hillary Clinton who narrowly lost the District to Trump. There was no GOP incumbent, and now-Rep. Karen Handel actually beat Ossoff by a very comfortable margin of almost 4 points.

I keep saying it. The strategy of counting on Trump to self-destruct, the inability of the GOP to govern, and criticism of the GOP’s “help the rich, stiff everyone else” agenda isn’t working any better in the post-election era than it did for Hillary. The Dems are leaderless, programless, and all too often clueless. Until that changes, the reign of Trump and one-party government in America is likely to continue, notwithstanding the polls and the media.

And, speaking of polls and the media, remember their performance in predicting the mood of America and the results of the 2016 election. Not much has changed.

PWS

06-21-17

JOINING THE CLUB: Sessions “Lawyers Up!”

https://www.washingtonpost.com/world/national-security/attorney-general-sessions-retains-a-personal-attorney/2017/06/20/698d9828-55f0-11e7-ba90-f5875b7d1876_story.html?hpid=hp_rhp-top-table-main_sessionslawyer-941pm%3Ahomepage%2Fstory&utm_term=.7a3bb2306c43

Sari Horwitz reports in the Washington Post:

“Attorney General Jeff Sessions, who has been under fire in recent months for his contacts with Russian officials during the 2016 presidential race, has retained the services of Washington lawyer Charles J. Cooper, a longtime friend.

Cooper was seen sitting behind Sessions when he testified last week before the Senate Intelligence Committee about President Trump and Russia.

“I do represent the Attorney General, but, as with all clients, do not comment on confidential client matters,” Cooper wrote in an email to The Washington Post.

Cooper, a partner with his own firm, Cooper & Kirk, would not say when he was retained by Sessions or whether he is representing Sessions in the special counsel’s investigation into Trump and Russia. Sessions, who was the first senator to endorse Trump on the campaign trail, was a top adviser to Trump during his race for president.

Cooper also assisted Sessions with his January confirmation hearing before the Senate Judiciary Committee, discussing those preparations in an interview with The Post at the time.

Sarah Isgur Flores, a Justice Department spokeswoman, described Cooper as “the attorney general’s longtime friend and counsel.”

The National Law Journal first reported that Cooper is now Sessions’s personal attorney.

Cooper, who clerked for Justice William H. Rehnquist on the Supreme Court, served in the Justice Department’s civil rights division and was appointed by President Ronald Reagan as the assistant attorney general for the Office of Legal Counsel. He was also a partner at McGuireWoods and at Shaw, Pittman, Potts & Trowbridge.

Cooper was also under consideration to serve as the Justice Department’s solicitor general. He withdrew his name in February, citing his concern after watching Sessions go through the confirmation process to become attorney general.

“After witnessing the treatment that my friend Jeff Sessions, a decent and honorable man who bears only good will and good cheer to everyone he meets, had to endure at the hands of a partisan opposition that will say anything and do anything to advance their political interests, I am unwilling to subject myself, my family and my friends to such a process,” Cooper said in a statement at the time.”

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

Read the complete article at the above link.

I think Cooper confuses “geniality” with “goodwill.” That Sessions is a bearer of “goodwill” would be news to most blacks, hispanics, immigrants, migrants, and LGBT individuals in the U.S. Yes, we’ve all noted that he is “genial.” But the South has been famous for producing polite, charming, genial white politicians who spent careers making sure that African Americans were denied their legal and constitutional rights, their human dignity, and their rights to fully participate in American society. Actions speak louder than words. And, since assuming the office of Attorney General, Sessions’s actions have been geared specifically at implementing a nationalist agenda inconsistent with the interests of many Americans, particularly minorities, immigrants, and the LGBT community.

As I have said numerous times over the past five months, the Trump Administration has been a “lawyer’s dream.” Prosecutors, defense counsel, judges, and legal reporters have all been very busy, and that’s not likely to change.

PWS

06-20-17

 

NEW FROM THE HILL: Nolan Rappaport Critiques Canada’s Refugee Stance!

http://thehill.com/blogs/pundits-blog/immigration/338561-trudeau-tweets-not-the-answer-to-canadas-refugee-issues?mobile_switch=standard

Nolan writes:

“The day after President Donald Trump issued his first travel ban order, Canadian Prime Minister Justin Trudeau tweeted a message to aliens “fleeing persecution, terror & war.” In addition to the inappropriateness of accusing the president of the United States of religious discrimination, his tweet made a promise that Canada will not be able to keep.

His tweet was an unqualified invitation to the 65.6 million aliens worldwide who have been displaced from their countries by conflict and persecution. Canada almost certainly will have to turn away many of the aliens who accept the invitation and come to Canada relying on it.

Some will be disqualified by Canada’s Safe Third Country Agreement with the United States, which requires asylum seekers to apply for asylum in the United States if they enter that country before entering Canada, with some exceptions.

Also, his invitation includes aliens who are fleeing terror and war, and despite their very real need for refuge, they are not likely to be able to establish eligibility for refugee status or asylum on that basis.  According to UNHCR figures, only 22.5 million of the 65.6 million displaced persons are refugees.

Trudeau’s tweet reminds me of President Jimmy Carter’s invitation to Cuban refugees when he was asked what the government was going to do about the Mariel Boat Lift. On April 20, 1980, Cuban President Fidel Castro announced that he would permit Cubans wishing to leave Cuba to go to the United States. Two weeks later, Carter said that the United States would “welcome the Cuban refugees with open arms and open hearts.”

But the boat lift was not limited to refugees. Castro forced the boat owners who participated in the boat lift to take approximately 8,000 criminals and hundreds of mentally-ill persons. The boat lift was a financial disaster for the ship owners. Despite Carter’s promise to welcome the Cuban refugees, his administration fined the boat owners $1,000 for each of the estimated 110,000 Mariel refugees they brought here in violation of section 273 of the Immigration and Nationality Act.”

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

Read Nolan’s complete op-ed, which also contains a description of Canada’s Refugee Program, over on The Hill at the above link.

Several thoughts.  Most of the world’s refugees have no way of getting to Canada. Many victims of war an terror are, in fact, refugees under a proper application of Convention standards. Our “Safe Third Country Agreement” with Canada has very limited applicability. Also, regardless of the wisdom of accusing President Trump of religious discrimination, nearly all Federal Courts to consider the two Travel Bans to date have found that the President indeed had improper motives for imposing the ban, including religious discrimination.

Given Trump’s highly problematic attitude and actions towards refugees, I’d be hesitant to throw too many stones at other nations who are at least trying to show the spirit of generosity embodied in the U.N. Convention and Protocol. Wise or not, Trudeau’s heart is in the right place. That’s more than I can say for Trump.

PWS

06-20-17

RELAX, Cabinet Members! — Supremes Say No Monetary Damages For Unconstitutional Acts! — Ziglar v. Abbasi

https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf

The full opinion is at the above link.  Here’s the Court’s “Detailed Syllabus,” which, of course, is NOT part of the opinion:

Syllabus

ZIGLAR v. ABBASI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 15–1358. Argued January 18, 2017—Decided June 19, 2017*

In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, for- mer Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facili- ty’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional viola- tions under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that peti- tioners detained them in harsh pretrial conditions for a punitive pur- pose, in violation of the Fifth Amendment; that petitioners did so be- cause of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain

——————

*Together with No. 15–1359, Ashcroft, Former Attorney General, et al. v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also on certiorari to the same court.

2

ZIGLAR v. ABBASI Syllabus

conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit af- firmed in most respects as to the Wardens but reversed as to the Ex- ecutive Officials, reinstating respondents’ claims.

Held: The judgment is reversed in part and vacated and remanded in part.

789 F. 3d 218, reversed in part and vacated and remanded in part. JUSTICE KENNEDY delivered the opinion of the Court, except as to

Part IV–B, concluding:
1. The limited reach of the Bivens action informs the decision

whether an implied damages remedy should be recognized here. Pp. 6–14.

(a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amend- ment gender-discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy un- der the Constitution itself. Pp. 6–7.

(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “pro- vide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted a far more cautious course, clarifying that, when decid- ing whether to recognize an implied cause of action, the “determina- tive” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well- settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.

When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the

Cite as: 582 U. S. ____ (2017) 3

Syllabus

analysis. The question is whether Congress or the courts should de- cide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. Pp. 8–14.

2. Considering the relevant special factors here, a Bivens-type rem- edy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 14–23.

(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a mean- ingful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intru- sion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 15–17.

(b)The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.

With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete con- duct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v.

4

ZIGLAR v. ABBASI Syllabus

United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.

Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into na- tional-security issues. National-security policy, however, is the pre- rogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress’ failure to provide a damages remedy might be more than mere over- sight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “ ‘other alternative forms of judicial relief,’ ” Minneci v. Pollard, 565 U. S. 118, 124, including in- junctions and habeas petitions.

The proper balance in situations like this, between deterring con- stitutional violations and freeing high officials to make the lawful de- cisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. Pp. 17–23.

3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse alle- gations against Warden Hasty state a plausible ground to find a con- stitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitu- tional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judi- cial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative reme- dies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s ex- pressed caution about extending the Bivens remedy, this context

Cite as: 582 U. S. ____ (2017) 5

Syllabus

must be regarded as a new one. Pp. 23–26.
4. Petitioners are entitled to qualified immunity with respect to re-

spondents’ claims under 42 U. S. C. §1985(3). Pp. 26–32.
(a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful con- spiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “assessed in light of the legal rules that were ‘clearly estab- lished’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635, 639. If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confront- ed,” Saucier v. Katz, 533 U. S. 194, 202, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is enti-

tled to qualified immunity. Pp. 27–29.
(b) Here, reasonable officials in petitioners’ positions would not

have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clear- ly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach con- sensus on department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that rea- sonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29–32.

KENNEDY, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined, and an opinion with respect to Part IV–B, in which ROB- ERTS, C. J., and ALITO, J., joined. THOMAS, J., filed an opinion concur- ring in part and concurring in the judgment. BREYER, J., filed a dis- senting opinion, in which GINSBURG, J., joined. SOTOMAYOR, KAGAN, and GORSUCH, JJ., took no part in the consideration or decision of the cases.

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

It was an odd opinion in that only six Justices participated, so the majority was 4-2. The majority opinion was Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito. But, the Chief Justice and Justices Thomas and Alito also wrote or joined in separate concurring opinions. Justice Breyer wrote a dissenting opinion in which Justice Ginsburg joined.

Justices Sotomayer, Kagan, and Gorsuch sat this one out. Justice Sotomayor previously was a Judge on the Second Circuit at the time this case was before that court. Justice Kagan worked on the case as Solicitor General. And, Justice Gorsuch arrived too late to participate in the argument and deliberations.

However, I doubt that there would be a difference in result with all nine Justices voting. Justice Gorsuch almost certainly would side with the majority opinion’s “strict construction” of liability. Even assuming that Justices Sotomayor and Kagan would side with the dissenters, there would still be a 5-4 majority for the approach set forth in Justice Kennedy’s opinion.

Reading between the lines here, I think that the whole Bivens concept is “on the rocks” before this Court.  The current, more conservative, Court clearly wishes Bivens were never decided and wants to limit it essentially to its facts. With a GOP President, any future appointments are likely to turn the tide even more solidly for overruling or strictly limiting Bivens.

I must admit to having mixed feelings. As a Government Senior Executive I was subject to several (totally unfounded) Bivens suits. I was greatly relieved and totally delighted when the doctrines of absolute and implied immunity got me dismissed in my private capacity. I also took out a standard Government approved “Bivens liability insurance policy” just in case.

On the other hand, I’d have to say that the specter of being involved in Bivens litigation was something that I and almost all of the other senior government officials whom I advised and worked with, up to and including Cabinet officers, had Bivens in the back of our “collective minds” in determining actions and policies. So, there was at least some “deterrent value” in the Bivens case. Moreover, it was an effective tool for pointing out the necessity for line enforcement officers, whom I often trained or advised, to keep their actions within clearly established constitutional boundries.

The Court suggests that it would be best for Congress to address this subject. But, Bivens has been around for many years and Congress has never addressed it. So, I wouldn’t hold my breath.

Interestingly, among those high-ranking officials who were relieved of any liability in this case were former Attorney General John Ashcroft and then FBI Director Robert Mueller.

PWS

06-19-17

 

 

EOIR INVESTS ELEVEN NEW U.S. IMMIGRATION JUDGES — PRIVATE SECTOR TOTALLY SHUT OUT!

Here are the bios of the new U.S. Immigration Judges:

IJInvestiture06162017

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

This brings the total number of sitting U.S. Immigration Judges to 326. Congratulations to the new Judges, and please don’t forget the due process mission of the U.S. Immigration Courts!

Unfortunately, however, this continues the trend of creating a one-sided U.S. Immigration Court which basically has excluded from the 21st Century Immigration Judiciary those who gained all or most of their experience representing respondents, teaching, or writing in the public sector. It’s not particularly surprising that Attorney General Jeff Sessions, who has expressed a strong enforcement bias, would prefer to “go to the Government well” for all or most of his selections.

However, the real problem here is with the DOJ during the Obama Administration.  With a chance to fill perhaps a record number of U.S. Immigration Judge positions over eight years, and to create an evenly balanced, diverse Immigration Judiciary in the process, they not only turned the hiring process in to a ridiculous two-year average cycle, but also selected 88% of the candidates from Government backgrounds.

Why would someone take two years for a selection process that selects from a limited inside pool anyway? And, why would you lead outside applicants to take the time to apply, believing they had a fair chance of competing, when the process obviously was “fixed” in favor of insiders? Sort of reminds me of the discussion of the labor certification recruitment process that we recently had in my Immigration Law & Policy Class at Georgetown Law!

Just more ways in which the “Due Process Vision” of the U.S. Immigration Courts has basically been trashed by the last three Administrations!

PWS

06-19-17

THE HILL: Professor Andy Schoenholtz Of Georgetown Law On Why Americans Should Be Grateful To The 9th Circuit For Upholding The Rule Of Law Against Executive Overreach!

 

http://thehill.com/blogs/pundits-blog/civil-rights/337955-9th-circuit-on-travel-ban-president-must-respect-congress

Professor Schoenholtz concludes:

“In fact, had the president focused on asking America’s civil servants to build on the progress achieved since 9/11 and try to find new ways of identifying security threats among those who seek visas, that work would have been accomplished by now, according to the schedule set by both the first and second EO’s.

If the Supreme Court decides at some point to hear a case regarding the EO, they will now be asked to consider not only whether the President has violated the Establishment Clause but also whether he has exceeded his statutory authority. As determined by the Supreme Court in the late nineteenth century, Congress has the constitutional authority to establish the immigration laws.

It has done just that by statute. The president has broad authority to implement that statutory system, but does the president have the power to stop admitting immigrants from six countries? From sixty? From all countries? Where does this end, and where would that leave Congress and the equilibrium established by the Constitution? We should thank the Ninth Circuit for raising that issue clearly and thoughtfully.

Andrew I. Schoenholtz is a Professor from Practice at Georgetown Law and the author, with Professors Jaya Ramji-Nogales and Philip G. Schrag, of “Lives in the Balance: Asylum Adjudication by the Department of Homeland Security.”

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

Read Andy’s entire analysis at the link.

I’m still somewhat skeptical that the Supremes will take this case given the problems caused by the President’s out of court statements and tweets. Future Chief Executives likely will be more “Presidential” and act with more prudence and thoughtfulness. So, why take a case that hopefully will turn out to be more or less “sui generus?” If I were the Supremes, I would let the lower courts sort through this mess and make a complete record before approaching the legal questions. But, we’ll see.  Very soon!

PWS

06-19-17

Welcome To Jeff Sessions’s America — In 1957 Sessions Was 10 Years Old And His White Christian Fellow Alabamans Were Busy Perverting The “Rule Of Law” To Deny Their African American Fellow Citizens Constitutional Rights, Fundamental Justice, & Human Dignity!

https://www.washingtonpost.com/opinions/a-white-cop-dies-and-a-young-black-man-spends-years-in-jail-for-a-crime-he-didnt-do/2017/06/16/d771059e-4706-11e7-a196-a1bb629f64cb_story.html?hpid=hp_regional-hp-cards_rhp-card-arts%3Ahomepage%2Fcard&utm_term=.a94b2ba61075

Colbert I. king writes in the Washington Post:

“How is it possible in a country that prides itself on having a Bill of Rights, expresses reverence for due process and touts equal protection that a 17-year-old can be arrested, put on trial and sentenced to death, and then spend 13 years being shuttled among death row cellblocks in disgusting jails and prisons with his case under appeal, all for a crime he didn’t commit?

The answer contains some simple prerequisites: He had to be black, live in the Jim Crow South and be accused of committing, as one deputy sheriff put it, a “supreme offense, on the same level of a white woman being raped by a black man” — that is, the murder of a white police officer.

Teenager Caliph Washington, a native of Bessemer, Ala., was on the receiving end of all three conditions. And as such, Washington became a sure-fire candidate to suffer the kind of tyrannical law enforcement and rotten jurisprudence that Southern justice reserved for blacks of any age.

In “He Calls Me by Lightning,” S. Jonathan Bass, a professor at Alabama’s Samford University and a son of Bessemer parents, resurrects the life of Washington, who died in 2001 finally out of prison — but with charges still hanging over his head.

 

Bass, however, does more than tell Washington’s tale, as Washington’s widow, Christine, had asked him to do in a phone call. Bass dives deeply into the Bessemer society of 1957 where Washington was accused of shooting white police officer James “Cowboy” Clark on an empty dead-end street near a row of run-down houses on unpaved Exeter Alley.

Bessemer-style justice cannot be known, let alone understood, however, without learning about that neo-hardscrabble town 13 miles southwest of Birmingham.

Bessemer served as home to a sizable black majority, an entrenched white power structure and an all-white police department, consisting at the time of a “ragtag crew of poorly paid, ill-trained, and hot-tempered individuals” who earned less than Bessemer’s street and sanitation workers.

Bessemer was a town with its own quaint racial customs, such as forcing black men to “walk in the middle of the downtown streets, not on the sidewalks, after dark — presumably to keep them from any close contact with white women.”

 

Bessemer was a town where in 1944 the police forced black prisoners to participate in an Independence Day watermelon run. White citizens reportedly cheered as firefighters blasted the inmates with high-pressure hoses to make the race more challenging. Winners, it is said, received reduced sentences and the watermelons.

It was in that town that Caliph Washington was born in 1939, the same year of my birth in Washington, D.C.

Bessemer’s racial climate was no different the year Washington was accused of killing Cowboy Clark. The town’s prevailing attitude on race was captured at the time in a pamphlet distributed by a segregationist group, the Bessemer Citizens’ Council. Black Christians, the white citizens’ council said, should remain content with being “our brothers in Christ without also wanting to become our brothers-in-law.”

If ever there was a place to not get caught “driving while black” — which is what Washington was doing on that fateful night in July 1957 — it was Bessemer. And that night’s hazard appeared in the form of Clark and his partner, Thurman Avery, who were cruising the streets in their patrol car looking for whiskey bootleggers.”

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

So, when you hear Sessions and his White Nationalist buddies like Bannon, Miller, Kobach, and Pence extolling the virtues of a small Federal Government (except for the migrant-bashing mechanisms) state control of voting, civil rights, police conduct, gender fairness, environmental regulations, labor relations, filling the prisons with maximum sentences, a new war on drugs, etc., it’s just clever code for “let’s make sure that white-dominated state and local governments can keep blacks, hispanics, immigrants, Muslims, and other minorities from achieving power, equality, and a fair share of the pie.” After all, if you believe, as these guys do, that true democracy can be a bad thing if it means diversity and power sharing, then you’re going to abuse the legal and political systems any way you can to maintain your hold on power.

And, of course, right-wing pontificating about the “rule of law” means  nothing other than selective application of some laws to the disadvantage of minorities, immigrants, and often women. You can see how selective Sessions’s commitment to the rule of law is when he withdraws DOJ participation in voting rights cases in the face of strong evidence of racial gerrymandering, withdraws support from protections for LGBT individuals, supports imprisonment in substandard prisons, targets legal marijuana, and “green lights” troubled police departments to prioritize aggressive law enforcement over the protection of minority citizens’ rights. Ethics laws, in particular, seems to be far removed from the Sessions/Trump concept of “Rule of Law.” And, sadly, this is only the beginning of the Trump Administration’s assault on our Constitution, our fundamental values, and the “real” “Rule of Law.”

PWS

06-18-17

WSJ: 47 Years Have Passed, But The Mariel Boatlift Is Still Generating Controversy!

https://www.wsj.com/article_email/the-great-mariel-boatlift-experiment-1497630468-lMyQjAxMTI3NTEyNzIxMDc0Wj/

Ben Leubsdorf writes in the WSJ:

“In the spring and summer of 1980, some 125,000 Cuban refugees sailed from the port town of Mariel on fishing boats and pleasure craft toward the U.S., many destined to settle in Miami.

Nearly four decades later, that exodus is at the center of an unresolved, sometimes bitter argument among economists, hinging on a basic question: When foreigners come to the U.S., does their presence drive down the wages of native workers? The long-running dispute has gained new relevance as the Trump administration tries to implement and enforce a stricter immigration policy.

Research published a decade after the Mariel boatlift, as well as more recent analyses, concluded that the influx of Cuban migrants didn’t significantly raise unemployment or lower wages for Miamians. Immigration advocates said the episode showed that the U.S. labor market could quickly absorb migrants at little cost to American workers.

But Harvard University’s George Borjas, a Cuban-born specialist in immigration economics, reached very different conclusions. Looking at data for Miami after the boatlift, he concluded that the arrival of the Marielitos led to a large decline in wages for low-skilled local workers.

 While the debate rages in the academy and online, Dr. Borjas and his views are ascendant in the political realm. Attorney General Jeff Sessions cited his research for years while a senator. President Donald Trump, with whom Dr. Borjas met during last year’s campaign, has echoed the Harvard economist’s research by regularly saying that low-wage immigrants hurt some Americans.

“This is his moment,” said David Card, the author of the early research on the boatlift that Dr. Borjas is seeking to upend. (The Justice Department declined to comment, and the White House didn’t respond to requests for comment.)

Dr. Borjas has sparred for years with Dr. Card, an economist at the University of California, Berkeley, as well as with Giovanni Peri of the University of California, Davis. In 2015, Dr. Borjas and Dr. Peri released papers three months apart that arrived at wildly different conclusions about Mariel.

The argument among the academics—all immigrants themselves—has escalated into charges of bias and bad faith. Dr. Peri and a co-author dismissed Dr. Borjas’s study as having “serious limitations.” Dr. Borjas fired back that “sloppiness” in their own paper “helps obfuscate what your eyes can clearly see and leads to a claim that nothing at all happened in post-Mariel Miami.”

Dr. Card and Dr. Peri, reviewing a textbook by Dr. Borjas several months later, said that he only “presents half the story about the economics of immigration.” Last fall, in another book, Dr. Borjas compared Dr. Peri to Marxist-Leninist teachers in his native Cuba: “They believed. All that was left was to compel everyone else to believe as well.”

The real-world stakes in the dispute are considerable. More than 43 million U.S. residents were born somewhere else, and most of the rest are descended from immigrants. Still, for more than two centuries, waves of migration have provoked backlashes from Americans worried about the nation’s economy, culture and social makeup.

Among economists today, there is little controversy about the benefits of immigration for the economy as a whole. A roughly 500-page assessment last year by the National Academies of Sciences, Engineering, and Medicine, which reviewed decades of research, concluded that immigrants are “integral to the nation’s economic growth” and have little or no effect on overall employment and earnings for workers already in the U.S.

A Cuban refugee rests on his cot in Miami’s ‘tent city,’ Aug. 18, 1980. At the time, five out of every six working-age Cuban refugees in Florida’s Dade County were without a job.
A Cuban refugee rests on his cot in Miami’s ‘tent city,’ Aug. 18, 1980. At the time, five out of every six working-age Cuban refugees in Florida’s Dade County were without a job.PHOTO: ASSOCIATED PRESS

The report said that experiences aren’t the same for everyone and noted that some studies have found “sizable negative short run wage impacts” for U.S.-born high-school dropouts, the group most likely to compete for work with low-skilled immigrants.

“There’s no free lunch. There’s going to be some effect of immigration” on wages, said Pia Orrenius, a senior economist at the Federal Reserve Bank of Dallas and a member of the panel that wrote the 2016 report. But, she added, the flexible U.S. economy adapts and should render any hit to the wages of native workers “a short-run phenomenon.”

Those most exposed to competition from new arrivals have long been a focus for Dr. Borjas. “Immigration is not like manna from heaven,” he said. “It can be great on average, but it doesn’t mean that every single person benefits.”

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Read the entire article at the link.

First, I find it interesting that Dr. Borjas, who came here as an immigrant, seems so highly motivated to prove that those who came after him weren’t as “worthy.”  Sort of a “I’m OK, but you guys not so much” approach.

Second, none of these studies seem to go into the human element of immigration. What were to forces that drove the Marielitos to come? What have they accomplished in the long run? Did Americans in low wage jobs in Miami really sink into poverty and go on welfare, or did they just move on to other types of work that perhaps paid more?

Third, why don’t economists spend less time on analyzing the past and more time on figuring out how to minimize or avoid any adverse effects of immigration, even if those effects are only short-term and unequally distributed across the working population.

Fourth, I was at the “Legacy INS” during the boatlift and was involved in an intense effort to stop it. We used arrests, mass detention, vessel seizures, fines, criminal prosecutions, deterrents, warnings and public service announcements, and exclusion proceedings. But, frankly, nothing really worked until Castro closed the port of Mariel again. The Cuban Adjustment Act, which is still in effect, also made it difficult or impossible to return Cubans who had no prior criminal records.

Eventually, the Reagan Administration came up with controversial policy of high seas interdiction, which has been used in the Caribbean to some extent by every succeeding Administration. Although interdiction survived Supreme Court review, it has criticized by many and is inconsistent with at least the spirit, if not the letter, of the UN Convention and Protocol, to which we are a party. I doubt, however, that interdiction could have stopped the Cuban boat lift, given the large number of boats and American citizens of Cuban descent who participated in going to Mariel to transport relatives, friends, or former neighbors or co-workers who wanted to leave Cuba.

Fifth, and finally, I find the Mariel Boatlift to be one of the “major events” of modern U.S. refugee history.  It has left a legacy of four enforcement strategies that are still with us today:

 * The use of long-term mass civil immigration detention as a deterrent;

* High seas interdiction;

* Overall negative vibes and case law on asylum applicants who are part of a so-callled “mass migration situation” (“Scarface Syndrome,” a reference to the Al Pacino movie about a Cuban drug kingpin who used the boatlift to get a foothold in the U.S.);

* A belief that the case-by-case adjudication procedures established by the Refugee Act of 1980 are inadequate to handle mass migrations (probably one of the origins of “expedited removal” procedures).

PWS

06-18-17