☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!

Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.

Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”

In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime. 

Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary. 

Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts. 

In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mocking the Constitutional guarantees of “equal justice for all.” 

I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.” It targets people of color, particularly immigrants and asylum seekers.

Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it: from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!

We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for all under our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).

For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!” 

As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law. 

Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴‍☠️

You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.

The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of  “candor to a tribunal” for Government lawyers is surprising and disheartening.

Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions! Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?

This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.

How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.

I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences of  what another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!

Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴‍☠️👎

 

“Due Process of Law”

As Reenvisioned By Trump & Billy Barr

This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:

 

 

 

PWS

09-03-20