🤯 SUPREMES TIRING OF GOP RIGHTY EXTREMIST JUDGES? — MAYBE, BUT DON’T COUNT ON IT! — U.S. v. Texas Was A Refreshing 8-1 (x Alito) Beatdown Of “Trump Hack” Judge Drew Tipton — Yet, Inexplicably, The Court Had Allowed Tipton & His GOP Nativist AG Cronies To Run Roughshod Over Immigration Policy For More Than A Year, Damaging Democracy & Humanity In The Process! 🏴‍☠️

Kangaroos
Trump & McConnell stuck a mob of these unqualified righty extremists on the lower Federal Courts. Even a super conservative Supremes might be tiring of the overt bias and lack of basic judicial competence exhibited by these judicial hacks. https://www.flickr.com/photos/rasputin243/
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https://www.vox.com/scotus/2023/6/23/23771310/supreme-court-united-states-texas-ice-immigration-drew-tipton-brett-kavanaugh

Ian Millhiser reports for Vox: 

More than a year ago, a Trump-appointed judge named Drew Tipton effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within the United States. On Friday, the Supreme Court ended Tipton’s reign over ICE’s enforcement priorities.

The Court’s decision in United States v. Texas was 8–1, with all eight justices in the majority concluding that Tipton didn’t even have jurisdiction to hear this case in the first place — though they split 5-3 on why Tipton lacked jurisdiction. Only Justice Samuel Alito, the Court’s most reliable Republican partisan, dissented.

The case concerned 2021 guidelines, issued by Secretary of Homeland Security Alejandro Mayorkas, that instructed ICE agents to prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”

Two red states, Texas and Louisiana, sued, essentially arguing that ICE must arrest more immigrants who do not fit these criteria. Moreover, because Texas federal courts often allow plaintiffs to choose which judge will hear their case by deciding to file their lawsuits in specific parts of the state, these two red states chose Tipton — a staunchly anti-immigrant judge who has been a thorn in the Biden administration’s side since the first week of his presidency — to hear this lawsuit.

In one of the most predictable events in the US judiciary’s history, Tipton promptly obliged the two states by striking down Mayorkas’s guidelines.

Justice Brett Kavanaugh’s opinion in Texas holds that no federal judge should have ever even considered this case. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions.” To the contrary, the Court held in Linda R. S. v. Richard D. (1973) that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”

. . . .

That said, the decision does contain some language that anti-immigrant judges may latch onto to impose their preference on the country — including a paragraph that reads like it was written to preserve lawsuits challenging the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

And there is one other very frustrating thing about this case. Although the Supreme Court eventually ruled that Tipton is not the head of ICE and cannot decide who its agents arrest, it rejected a request to temporarily block Tipton’s decision last July.

. . . .

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

Read the complete article at the link.

Compare the Supreme’s inexplicable rejection of the Biden Administration’s compelling request for a stay of Tipton’s outrageous interference (which had been allowed to stand by a the 5th Circuit in a stunning dereliction of duty) with their overly generous treatment of totally unjustified stay requests by Trump scofflaws during the last Administration. See, e.g., https://immigrationcourtside.com/2020/10/13/🏴‍☠️👎🏻only-the-beginning-supremes-again-interfere-with-lower-court-ruling-in-aid-of-trumps-census-undercount-scheme-commun/.

🇺🇸 Due Process Forever!

PWS

06-26-23

 

⚖️ APTLY-CAPTIONED U.S. v. TEXAS WILL TEST SUPREMES’ WILLINGNESS TO STAND UP AGAINST TRUMP’S OUTLAW FEDERAL JUDGES & RACIST GOP STATE AGs!

Trump Judges
Trump Federal Judges Tilt Against Democracy
Republished under license

https://apple.news/AT659B9r2TJqCsmk0-8ONZw

A Trump judge seized control of ICE, and the Supreme Court will decide whether to stop him

Judge Drew Tipton’s order in United States v. Texas is completely lawless. Thus far, the Supreme Court has given him a pass.

By Ian Millhiser | November 27, 2022 8:00 am

In July, a Trump appointee to a federal court in Texas effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within US borders. Although Judge Drew Tipton’s opinion in United States v. Texas contains a simply astonishing array of legal and factual errors, the Supreme Court has thus far tolerated Tipton’s overreach and permitted his order to remain in effect.

Nearly five months later, the Supreme Court will give the Texas case a full hearing on Tuesday. And there’s a good chance that even this Court, where Republican appointees control two-thirds of the seats, will reverse Tipton’s decision — his opinion is that bad.

The case involves a memo that Secretary of Homeland Security Alejandro Mayorkas issued in September 2021, instructing ICE agents to prioritize undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” when making arrests or otherwise enforcing immigration law.

A federal statute explicitly states that the homeland security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities,” and the department issued similar memos setting enforcement priorities in 2005, 2010, 2011, 2014, and 2017.

Nevertheless, the Republican attorneys general of Texas and Louisiana asked Tipton to invalidate Mayorkas’s memo. And Tipton defied the statute permitting Mayorkas to set enforcement priorities — and a whole host of other, well-established legal principles — and declared Mayorkas’s enforcement priorities invalid. This is not the first time that Tipton relied on highly dubious legal reasoning to sabotage the Biden administration’s immigration policies.

. . . .

Even when the law offers no support for the GOP’s preferred policies, in other words, the Court permits Republicans to manipulate judicial procedures in order to get the results they want. The Texas attorney general’s office can handpick judges who they know will strike down Biden administration policies, and once those policies are declared invalid, the Supreme Court will play along with these partisan judges’ decisions for at least a year or so.

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

Once the GOP got the upper hand on the Federal Bench, the “traditional” conservative case for “judicial restraint” went straight down the tubes under an assault by righty ideologues eager to “do in” precedents, laws, and Executive policies that don’t fit their “out of the mainstream” political agenda, no matter how thinly reasoned or often counterfactual their “cover” might be.

And, as usual, Dems have been slow on the uptake about getting younger, staunch defenders of democracy and our Constitution on the bench to counteract the right-wing’s Article III takeover. 

As this article points out, the Supremes’ questionable “shadow docket” is manipulated by the Court’s righty majority improperly to favor GOP scofflaw tactics, even where they ultimately can’t concoct a legal basis to uphold them on the merits.

⚖️🗽👩🏻‍⚖️Better judges for a better America!

🇺🇸 Due Process Forever!

PWS

11-28-22

SUPREMES’ RIGHT WING DELIVERS STARK MESSAGE: BROWN LIVES DON’T MATTER, AS IT SHRUGS OFF CBP AGENT’S UNJUSTIFIED KILLING OF MEXICAN TEEN – Other Four Justices Dissent From Grant of Impunity For Deadly Immigration Enforcement – Hernandez v. Mesa

Hernandez v. Mesa, No. 17-1678, 02-26-20

Hernandez v. Mesa17-1678_m6io

Syllabus [By Court Staff]

HERNANDEZ ET AL. v. MESA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 17–1678. Argued November 12, 2019—Decided February 25, 2020

Respondent, United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert sep- arating El Paso, Texas, from Ciudad Juarez, Mexico. The shooting drew international attention, and the Department of Justice investi- gated, concluded that Agent Mesa had not violated Customs and Bor- der Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.

Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The Dis- trict Court dismissed their claims, and the United States Court of Ap- peals for the Fifth Circuit affirmed. After this Court vacated that de- cision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, the Fifth Circuit again affirmed, refusing to rec- ognize a Bivens claim for a cross-border shooting.

Held: Bivens’ holding does not extend to claims based on a cross-border shooting. Pp. 4–20.

(a) In Bivens, the Court implied a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover claims under the Fifth and

2

HERNANDEZ v. MESA Syllabus

Eighth Amendments. See Davis v. Passman, 442 U. S. 228; Carlson v. Green, 446 U. S. 14. But Bivens’ expansion has since become “a ‘disfa- vored’ judicial activity,” Abbasi, supra, at ___, and the Court has gen- erally expressed doubt about its authority to recognize causes of action not expressly created by Congress, see, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request in- volves a claim that arises in a “new context” or involves a “new cate- gory of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, at ___. Pp. 4–8.

(b) Petitioners’ Bivens claims arise in a new context. Their claims are based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the con- text—a cross-border shooting—is significantly “different . . . from pre- vious Bivens cases.” Abbasi, supra, ___. It involves a “risk of disrup- tive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___. Pp. 8–9.

(c) Multiple, related factors counsel hesitation before extending Bivens remedies into this new context. Pp. 9–19.

(1) The expansion of a Bivens remedy that impinges on foreign re- lations—an arena “so exclusively entrusted to the political branches . . . as to be largely immune from judicial inquiry,” Haig v. Agee, 453 U. S. 280, 292—risks interfering with the Executive Branch’s “lead role in foreign policy,” Medellín v. Texas, 552 U. S. 491, 524. A cross- border shooting affects the interests of two countries and, as happened here, may lead to disagreement. It is not for this Court to arbitrate between the United States and Mexico, which both have legitimate and important interests at stake and have sought to reconcile those inter- ests through diplomacy. Pp. 9–12.

(2) Another factor is the risk of undermining border security. The U. S. Customs and Border Protection Agency is responsible for pre- venting the illegal entry of dangerous persons and goods into the United States, and the conduct of their agents positioned at the border has a clear and strong connection to national security. This Court has not extended Bivens where doing so would interfere with the system of military discipline created by statute and regulation, see, e.g., Chap- pell v. Wallace, 462 U. S. 296, and a similar consideration is applicable to the framework established by the political branches for addressing cases in which it is alleged that lethal force at the border was unlaw- fully employed by a border agent. Pp. 12–14.

(3) Moreover, Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside

Cite as: 589 U. S. ____ (2020) 3 Syllabus

  1. S. borders. For example, recovery under 42 U. S. C. §1983 is avail- able only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Tor- ture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Con- gress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch of- ficials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either. Pp. 14–18.

(4) These factors can all be condensed to the concern for respecting the separation of powers. The most important question is whether Congress or the courts should create a damages remedy. Here the an- swer is Congress. Congress’s failure to act does not compel the Court to step into its shoes. Pp. 19–20.

885 F. 3d 811, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., andTHOMAS,GORSUCH,andKAVANAUGH,JJ.,joined. THOMAS,J.,fileda concurring opinion, in which GORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Key Quote From Justice Ginsburg’s dissent:

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court held that injured plaintiffs could pursue claims for damages against U. S. officers for conduct disregarding constitutional constraints. The in- stant suit, invoking Bivens, arose in tragic circumstances. In 2010, the complaint alleges, a Mexican teenager was playing with friends in a culvert along the United States- Mexico border. A U. S. Border Patrol agent, in violation of instructions controlling his office and situated on the U. S. side of the border, shot and killed the youth on the Mexican side. The boy’s parents sued the officer for damages in fed- eral court, alleging that a rogue federal law enforcement of- ficer’s unreasonable use of excessive force violated the Fourth and Fifth Amendments. At the time of the incident, it is uncontested, the officer did not know whether the boy he shot was a U. S. national or a citizen of another land. See Hernández v. Mesa, 582 U. S. ___, ___–___ (2017) (per curiam) (slip op., at 5–6).

When the case first reached this Court, the Court re- manded it, instructing the Court of Appeals to resolve a threshold question: Is a Bivens remedy available to noncit- izens (here, the victim’s parents) when the U. S. officer acted stateside, but the impact of his alleged wrongdoing

2 HERNANDEZ v. MESA GINSBURG, J., dissenting

was suffered abroad? To that question, the sole issue now before this Court, I would answer “yes.” Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plain- tiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. for- eign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the applica- tion of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders. I would therefore hold that the plaintiffs’ complaint crosses the Bivens threshold.

* * **

Regrettably, the death of Hernández is not an isolated in- cident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing indi- viduals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal deci- sions, no action was taken. D. Martínez, G. Cantor, & W. Ewing, No Action Taken: Lack of CBP Accountability in Re- sponding to Complaints of Abuse, American Immigration Council 1–8 (2014), americanimmigrationcouncil.org/sites/

14 HERNANDEZ v. MESA GINSBURG, J., dissenting

default/files/research/No%20Action%20Taken_Final.pdf. Ac- cording to amici former Customs and Border Protection of- ficials, “the United States has not extradited a Border Pa- trol agent to stand trial in Mexico, and to [amici’s] knowledge has itself prosecuted only one agent in a cross- border shooting.” Brief for Former Officials of U. S. Cus- toms and Border Protection Agency as Amici Curiae 4. These amici warn that, “[w]ithout the possibility of civil li- ability, the unlikely prospect of discipline or criminal pros- ecution will not provide a meaningful deterrent to abuse at the border.” Ibid. In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.

***

I resist the conclusion that “nothing” is the answer re- quired in this case. I would reverse the Fifth Circuit’s judg- ment and hold that plaintiffs can sue Mesa in federal court for violating their son’s Fourth and Fifth Amendment rights.

 

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

This case is straightforward. Mesa a CBP Agent standing in the United States shot Hernandez, an unarmed 15-year-old Mexican standing in Mexico without justification. This violated Hernandez’s Fourth and Fifth Amendment rights. Had the lower Federal Courts and the Supremes applied the law on “Constitutional torts” correctly, Mesa would have been found liable. The Government probably would have settled with the Hernandez family.

Instead, nearly of decade of unnecessary litigation ensued during which all three levels of the U.S. Court System failed the Hernandez family and distorted our system of justice. Dissenting Fifth Circuit Judge (now Ambassador) Ed Prado summed up this legal farce in a single powerful phrase: “[the majority has been] led astray from the familiar circumstances of this case by empty labels of national security, foreign affairs, and extra- territoriality.” For the record, Ambassador Prado is a lifelong Republican. I worked with him on immigration litigation during the Reagan Administration.

Hey, just “business as usual” for a GOP Supremes’ majority that has checked the Constitution and their humanity at the door in their haste to “deconstruct America” and reconstitute it as the White Nationalist authoritarian state that the Trump regime embodies. Heck, corporations and guns have more rights that dead Mexican kids and their families under the majority‘s view. “Not their kids” as I’ve noted before. I do suspect that if members of their own families were being shot and killed by CBP, we would have a different result in cases like this. But, out of sight, out of mind. Wow, think of the potential foreign relations nightmare of CBP Agents stopped killing unarmed Mexican kids from our side of the border!

 

Not to be outdone by the majority’s legal gibberish cloaking moral abdication, Justices Gorsuch and Thomas wrote separately to signal Trump that they would like to do away with Bivens entirely while in the process of rewriting the laws in Trump’s image. Apparently recognizing that the GOP has effectively stymied Congress and that Trump intends to inflict many more legal and Constitutional abuses on the unfortunate non-white population, they would like to eliminate all restraints on the regime’s constant violations of law and abuses of individual rights. Obviously, from their exalted and privileged positions above the Constitutional, legal, and societal chaos affecting less fortunate individuals under the Trump regime, they haven‘t fully thought through want happens when Trump or the next White Nationalist demagogue comes for them and there is neither a rule or law nor anyone left to enforce it in a fair an impartial manner.

I’m not the only one who understands the ugly truth about the future of all of our individual rights and the lives of nonwhite individuals (citizens or not)  that the Trump majority on the Supremes are attempting to hide with their opaque, yet lethal, legal gobbledygook.  Ian Millhiser over at Vox News also sees though the smokescreen at what’s really happening here: “The Supreme Court just held that a border guard who shot a child will face no consequences” https://apple.news/AWWSBpk_aR6uAlmxmQIvZkw

 

As we’re finding out anew every day, the law and fair, impartial, and courageous judging is for suckers!

 

Due Process Forever; The “Roberts Five” Never!

 

PWS

 

02-26-20