"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
We saw it in the recent Supreme Court decisions that supercharged the legal philosophy of “originalism” on abortion and guns. Reproductive rights, said Justice Samuel A. Alito Jr., are neither found in the explicit words of the Constitution nor “deeply rooted in the Nation’s history and traditions,” so they don’t exist as rights. As for states that want to regulate guns, said Justice Clarence Thomas, only regulations that have “a distinctly similar historical regulation” from the 18th century will be allowed. The America of 1789 becomes a prison the conservative justices can lock us all in whenever it suits them.
Originalism was a scam from the start, a foolproof methodology for conservatives to arrive at whatever judicial result matches their policy preferences: Cherry-pick a few quotes from the Federalist Papers, cite an obscure 1740 ordinance from the Virginia colony one of your clerks dug up, then claim that scripture leads us inexorably to only one outcome.
By happy coincidence, that outcome is always the one Republicans seek. Anyone who disagrees, or who shows how absurd the right’s historical analysis is even on its own terms, simply isn’t respecting the divine will of the framers.
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The “immigration/human rights/racial justice” community was one of the first to see the unconscionable human carnage and grotesque legal perversions produced by right-wing restrictionist/nativist politicos and judges.
The “founding fathers” were, of course, folks who, for all their vision and achievements, recognized slavery was wrong but continued to exploit a slave society, enshrined slavery in our original Constitution, and even went so far as to define slaves as 3/5 of a person to insure their White owners could exercise disproportionate and unjustified political power while giving those whose labor and humanity they stole no political or legal rights whatsoever.
In other words, these were complex, brilliant, yet deeply flawed and morally challenged individuals, who institutionalized and enshrined “dehumanization” or “de-personification” of “the other” because it was expedient and served their purposes. There was a limit to their vision, creativity, wisdom, and courage. It mostly extended only so far as “free, White men who owned property (including, of course, human property).”
The rest of society has been slow on the uptake and even slower on taking effective concerted action against the perils of far-right “originalism” and other bogus right-wing dogmas which have somehow obtained “fake legitimacy” and now threaten our nation and our world.
Dan Rather American Journalist PHOTO: Creative Courtside
FROM “STEADY” FOR July 1, 2022:
A HARD RIGHT TURN
By Dan Rather and Elliott Kirschner
As the United States Supreme Court wrapped up its spring term today, its marbled halls risked representing the setup to an ironic joke — albeit one not funny but rather cruel, dangerous, and foreboding.
The building is supposed to symbolize stability, fairness, and temperance. Instead, it has become headquarters for a majority group of highly partisan, reactionary players who make clear that they are uninhibited by history, precedent, or the will of the majority of the American people.
Their black robes are meant to convey modesty, humility, and wisdom. Yet this collection of politicians demonstrates the direct opposite.
This Supreme Court term will be remembered as the moment a cynical and anti-democratic movement, decades in the making, reached its zenith, empowered by bad faith and opportunism. Now the cabal lords its power over a broken political system from a perch of increased influence and lack of accountability.
This is power politics by unelected actors, appointed largely by men who lost the popular vote for president. Its path was paved by Mitch McConnell’s Machiavellian exploitation of the deaths of two justices. He was a master of shamelessness with a single purpose — to accomplish via judicial appointment what he could never have achieved through democratic means.
The damage he and his hard-right radicals have wrought touches all aspects of society, from abortion rights to commonsense gun control to the environment to what I believe is an overlooked evisceration of the separation of church and state. What we have are the ruins of what many took for granted as our constitutional rights. And nothing suggests these justices are anywhere near sated.
We have now firmly left behind the realm of the theoretical. This is real, and it will get only more so. For years there were those who warned that Roe wasn’t safe, and neither was anything else, that these justices were licking their chops to devour a modern America and spit out a distorted version of the past. Too many of these prophets were dismissed as hysterical, their fears histrionic and overblown. Surely, they were lectured, precedent matters. Certainly there would have to be some legal basis to rewrite America’s social contract and decades of settled rights.
Wrong.
All of you who spoke up, who tried to get others to pay attention, you deserve an apology.
There can be no hiding from it now. All of this is out in the open. The justices aren’t even trying to obscure what they are doing and where they intend to go. But in their transparent power plays, there are still faint glimmers of hope.
I hear from people who in the past had rarely talked about the court. Now, they are suddenly enraged. Many are focused on how, just today, the justices accepted a case for next year that could allow state legislatures to take a torch to fair elections. How many people in the past got so riled up about an upcoming court docket?
The Supreme Court relies on its reputation, and these days, its reputation for humility, fairness, and wisdom is in tatters. Its rulings increasingly seem to be far outside where most Americans are. Wait until they tackle contraception and the privacy of one’s bedroom.
To all who feel bereft of hope, I offer the lessons of social movements of the past. Perseverance is power. Organizing inspires optimism. Resilience breeds results.
In order to solve a problem, you first have to see it, name it, contend with its truth. That is the stage many are in now. But many others have already been there for a long time. This is a movement that already has leadership. Now it has momentum born from a desire to ensure that America goes forward, toward progress, and true to the Constitution and the will of its people.
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BIDEN ET AL. v. TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 21–954. Argued April 26, 2022—Decided June 30, 2022
In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential administrations, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum officially terminating it.
The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory re- turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be- cause the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA.
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BIDEN v. TEXAS Syllabus
The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention re- sources.” Id., at 857 (emphasis in original).
While the Government’s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court’s judgment in full. With respect to the INA question, the Court of Ap- peals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.
Held: The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.
(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated 8 U. S. C. §1252(f )(1). See Garland v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not deprive this Court of jurisdiction to reach the merits of an appeal even where a lower court enters a form of relief barred by that provision. Section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.
The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief ”—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court’s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.
Cite as: 597 U. S. ____ (2022) 3 Syllabus
Statutory structure likewise confirms this conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously. See, e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Finally, this Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of the suit notwithstanding the District Court’s apparent violation of section 1252(f )(1). Pp. 8–13.
(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___, ___.
Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise- discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).
The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).
The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an
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BIDEN v. TEXAS Syllabus
alternative means of processing applicants for admission, see 8 U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap- peals erred in holding that the INA required the Government to continue implementing MPP. Pp. 13–18.
(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or “ ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court’s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agency’s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.
The various rationales offered by respondents and the Court of Ap- peals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Re- gents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.
Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mis- match between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government’s decision to appeal the District Court’s in- junction as relevant to the question of the October 29 Memoranda’s status as final agency action. Nothing prevents an agency from under- taking new agency action while simultaneously appealing an adverse
Cite as: 597 U. S. ____ (2022) 5 Syllabus
judgment against its original action. Pp. 18–25. 20 F. 4th 928, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.
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Credit where credit is due. At least in this particular case, Chief Justice Roberts and the much-maligned Justice Kavanaugh probably have saved many lives of already-born humans.
Breyer’s “Last Hurrah.” I think this was Justice Breyer’s last case, fittingly a victory for reasonableness and humanity. As of noon today, he was succeeded by Justice Ketanj Brown Jackson, the first African American female Justice! Good luck to her. I hope she can convince her right-wing colleagues to “do the right thing” on at least a few cases!
Not out of the woods yet? The case now goes back to to the 5th Circuit and a Trumpy USDJ — not the best forum for asylum applicants seeking justice.
Will they do better? Ending the toxic, inhumane, and ineffective “Remain in Mexico Program” is one thing. Replacing it with a viable asylum adjudication system that will actually efficiently grant protection to the many refugees at our border who have been victims of a biased, anti-asylum, non-expert decision-making process is quite another.It starts with tossing the BIA and the many EOIR Judges who aren’t following asylum law and aren’t able to grant asylum and replacing them with real expert judges who can get the job done, positively guide Asylum Officers, and make sure they follow proper legal interpretations. To date, that’s been something that Garland and the Administration have been unwilling and/or unable to do — at least to the extent required to make due process, fundamental fairness, and the rule of law functional at our borders.
Glimmer of hope (maybe)? In her dissent, Justice Amy Coney Barrett went to great lengths to come up with reasons not to take jurisdiction over this “life or death” matter in its current posture. But, unlike the other three dissenters, she stated that she agreed with the majority “on the merits” of the case. That makes it at least possible that there could be as many as six potential votes for fair and humane treatment of asylum applicantsby the Administration if the jurisdictional hurdle can be overcome. No guarantees. But something to think about — particularly in light of Alito’s snarky, White Nationalist nonsense and anti-immigrant myths reflected in his separate dissenting opinion.
Alioto defines “rock bottom” judicial performance. For example, in the first paragraph of his dissent, Alito says this:
In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?
First he mis-states the law. By no means are all individuals who come to the border or are apprehended in the vicinity thereof entitled to “hearings” on admissibility. All of those without entry documents are subject to summary removal by a DHS Enforcement Agent. Only those who claim a fear of return to their home countries are entitled to an expeditious review of their claims by a (supposedly) well-trained Asylum Officer. Further, only those who establish the necessary “credible fear” of harm (or in some cases a “reasonable fear”) are entitled to have their cases for asylum determined on the merits by either an Asylum Officer or an EOIR Immigration Judge (or both). So, many of those appearing at the border are summarily removed without any hearings at all.
Thousands of those who pass credible fear and are awaiting “merits hearings” are imprisoned in DHS facilities in conditions that probably would fail constitutional scrutiny if applied to convicted felons. Those poor conditions are intended, at least in part, to demoralize and coerce individuals into abandoning claims for protection. They also exponentially decrease the chances of receiving competent pro bono representation and documenting and presenting their cases for life-preserving protection. This is significant, because they too often face EOIR judges with questionable expert judicial qualifications who are essentially “programmed to deny asylum.” Indeed, a “Garland gimmick” for recent arrivals — so-called “expedited dockets” — produced nearly 100% asylum denials as compared with the nationwide rate of 67%. For years, ICE detention centers, many of them operated by private contractors, have been notorious as places “where asylum cases go to die.”
Contrary to the bogus implication of Alito’s statement that one has to “hope” that individuals show up for hearings, many have immigration bonds — some punatively high. When given a chance to obtain qualified representation, and thereby to understand the system and their obligations thereunder, the vast majority of asylum applicants voluntarily appear at their hearings (some many times due to the EOIR practice of “Aimless Docket Reshuffling”), win or lose. And, perhaps not surprisingly, they succeed in winning their cases at rates that are many times higher than those forced to proceed without representation.
Indeed, a government actually interested in making the legal system work, rather than ginning up nativist myths about asylum seekers, would cut the “cruel and inhumane gimmicks” like “Remain in Mexico” and detention in the “New American Gulag” (NAG”) and instead invest in training competent pro bono or “low bono” representatives, temporarily resettling applicants to those jurisdictions with good NGOs and where the Immigration Judges are known to be scholarly and fair in evaluating asylum cases, and replacing poorly qualified Immigration Judges with experts able to competently perform these life or death functions at the “retail level” of our justice system in a fair and efficient matter consistent with due process.
Alito also repeats, apparently for prejudicial dramatic effect, the oft-used but potentially misleading figure of 1.7 million “encounters” by CBP. But, since the legal asylum system at our border was improperly dismantled by the Trump Administration, many of these represent the same individual or individuals, repeatedly encountered and illegally returned without any process whatsoever, who seek only the legal forum to present their claim to authorities to which they are entitled under both domestic and international law. This right has been systematically denied to them by both the Trump and Biden Administrations and by mal-functioning Federal Judges, at all levels, who have failed to uphold the rule of law as it applies to the most vulnerable among us. Additionally, a knowledgeable jurist would take any statistics furnished by the notoriously unreliable DHS with a “grain of salt.”
The lack of understanding of how immigration law operates, the nativist-driven misinterpretations by the Trump Administration embodied in this dissent, and the lack of intellectual integrity in furthering nativist myths and intentional exaggerations to describe a group of individuals who merely seek legal justice under both our laws and international standards is a graphic illustration of who does not belong on our highest Court. If we are really committed to equal justice and fundamental fairness in the American justice system, we should insist that all of those nominated for our Supreme Court demonstrate significant experience representing individual foreign nationals in the Immigration Courts — the “life or death retail level” of our justice system.
Right now, those so-called “courts” are an embarrassing and dysfunctional “parody of justice” to which neither Justice Alito nor any of his colleagues would want to submit their own lives and futures or those of anyone they truly cared about. That’s the very definition of dehumanization and “Dred Scottification of the other” that Justice Alito seems so curiously eager to advance. Perhaps, that’s because he lacks the necessary empathy and perspective to see life from “the other side of the bench” as the rest of humanity does.
I’d like to think that Alito is capable of change and growth. Most, if not all, humans are. After all, he’s appointed for life, so he isn’t going anywhere soon. But, I won’t hold my breath.
Nobody should be surprised that the Supreme Court’s conservative justices on Friday jettisoned nearly 50 years of precedent upon precedent in overturning Roe v. Wade. Heck, they didn’t even honor their own precedent articulated 24 hours earlier.
In their opinion Thursday morning forcing New York and other densely populated states to allow more handguns in public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions — specifically, the 1328 Statute of Northampton — “has little bearing on the Second Amendment” because it was “enacted … more than 450 years before the ratification of the Constitution.”
Yet in their ruling Friday morning in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century (and cracking the door to banning same-sex marriage and contraception), the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake — and to women as property, “inferior” to men.
The right-wing majority’s selective application of history reveals the larger fraud in this pair of landmark rulings: Their reasoning is not legal but political, not principled but partisan.
Still, there is a commonality to the rulings. Both decisions foment maximum chaos and were delivered with flagrant disregard for the instability and disorder they will cause.
The high court was meant to be the guarantor of law and order. But the conservative justices, intoxicated by their supermajority, have abandoned their solemn duty to promote stability in the law and are actively spreading real-world disruption.
Worse, this invitation to disorder comes as the nation is trying to restore the rule of law after a coup attempt led by a president who appointed three of the five justices in the abortion majority. The spouse of a fourth — Ginni Thomas, Clarence’s wife — aggressively pushed state legislators and the White House to overthrow the election. Yet Thomas, the senior associate justice, has refused to recuse himself from related cases.
After decades of crocodile tears over imagined “judicial activism,” the conservative supermajority has shed all judicial modesty and embraced radicalism. The liberal justices, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer, wrote in their Dobbs dissent that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.”
Even Chief Justice John G. Roberts Jr., who joined the gun ruling, scolded fellow conservatives for blithely overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed,” Roberts wrote. The majority’s “dramatic and consequential ruling is unnecessary,” he said, “a serious jolt to the legal system” that could have been avoided with a narrower decision that would have been “markedly less unsettling.”
Alito, in his (characteristically) sneering opinion in the abortion case, dismissed Roberts as unprincipled and public opinion as an “extraneous” concern. He likewise dismissed the pain the ruling would cause, writing that “this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’ ” He washed his hands of answering the “empirical question” of “the effect of the abortion right … on the lives of women.”
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Read the rest of Milbank’s op-ed at the link.
It would be tempting to breathe a “sigh of relief” that while off on their taxpayer-underwritten summer frolic, the “Gang of 6” can’t do any more damage to our Constitution, our nation, our institutions, or humanity. But, unfortunately, that’s not completely true. If and when their party calls on them, they can always go into “emergency session.”
So let’s hope that there will be no further “emergencies” this summer other than the disorder and divisions already caused by their disingenuous political decrees masquerading as (very thinly to tragicomically inept and inconsistent) “jurisprudence.”
Still, those who enjoy their humanity and their rights (other than gun rights)shouldn’t get too complacent. Vacation will end; the Supremes will be back at it in October — looking for more ways to turn back the clock and “Dred Scottify the other,” even though the majority of Americans actually are “some kind of other.” With a little help from their GOP friends, they will disenfranchise and dehumanize one group at a time until rights and political power look largely like they did in 1789 — when free White men of property ruled.
As for CJ Roberts, after years of trying to put a “genial spin” on the mockery of a fair, impartial, and qualified judiciary incubating at his Supremes, he has totally lost control of the far-right extremists appointed by his party and, in some cases, pushed through the process in a highly irregular manner. Hard to have much sympathy there.
Refugee and Forced Migration Studies, Grace School of Applied Diplomacy
Craig Mousin has been the University Ombudsperson at DePaul since 2001. He received a BS from Johns Hopkins University, a JD from the University of Illinois, Urbana-Champaign, and an M Div from Chicago Theological Seminary. He joined the College of Law faculty in 1990, and served as the Executive Director of the Center for Church/State Studies until 2001, Acting Director until 2003, and co-director from 2004–2007. Mousin co-founded and continues to participate in the Center’s Interfaith Family Mediation Program. He has taught in DePaul’s School of Continuing and Professional Studies, the Religious Studies Department, the Grace School of Applied Diplomacy, and the Peace, Justice and Conflict Studies program. He has also taught as an adjunct faculty member at the University of Illinois College of Law and Chicago Theological Seminary .
Prior to DePaul, he began practicing labor law at Seyfarth, Shaw, Fairweather & Geraldson in 1978. In 1984, Mousin founded and directed the Midwest Immigrant Rights Center, a provider of legal assistance to refugees which has since become the National Immigrant Justice Center. He also directed legal services for Travelers & Immigrants Aid between 1986 and 1990. The United Church of Christ ordained him in 1989. At that time, Wellington Avenue U.C.C. called him as an Associate Pastor. He was a founding co-pastor of the DePaul Ecumenica l Gathering (1996-2001). Mousin serves as a Life Trustee of the Chicago Theological Seminary. In addition, he is a member of the Leadership Council of the National Immigrant Justice Center, a member of the Leadership Council of the Marjorie Kovler Center for Survivors of Torture, a former President and member of the Board of the Eco-Justice Collaborative, and a former President and Board member of the Immigration Project of downstate Illinois. Mousin is a current member of the ABA Dispute Resolution Section Ombuds Committee.
Craig writes:
Comment: Paul,
You might be interested in a short interview I did with Chicago FOX news on World Refugee Day. I tied the celebration in with the honoring of Juneteenth. See:
Also, I do not know if you subscribe to my podcast, Lawful Assembly, but my last post tied together censorship of books in public schools with anti-immigrant sentiments. You can listen at:
Today’s WashPost Outlook Section contained a highly relevant article by author Dave Eggers about how far-right zealots — many with no real stake in our public schools — have taken over at local levels and apply extreme censorship — even to books and concepts that have been successfully and routinely taught for years. https://www.washingtonpost.com/outlook/2022/06/24/dave-eggers-book-bans-south-dakota/
In this case, it’s driving experienced teachers who believe in truth, freedom, and individual rights to flee in droves. So, what we’re really seeing is a shocking “dumbing down” of American education, libraries, and public discourse driven by far right fear-mongers seeking to impose their lack of values and intolerance on others.
We have seen this week how far-right activist extremists, from the Supremes to local politicians and school boards, have elevated guns that kill while gutting the individual rights to free speech, equal protection,and fundamental fairness guaranteed by the 1st, 5th, and 14th Amendments.
Justice Clarence Thomas is certainly a horrible jurist. But, in this instance he might be the only honest GOP appointee on the Supremes.
When Thomas says that immigrants’ human rights, gay rights, right to conception, marriage rights and most other meaningful individual rights guaranteed by the Constitution are on the chopping block, progressives had better believe him. Remember how “leaving things to the states” worked out for African Americans and other minorities attempting to exercise their fundamental rights, even after the Civil War and the 13th, 14th, and 15th Amendments. And, remember all those paeons to precedent and “not to worry” about Roe statements under oath from GOP Supremes’ candidates before they actually took their seats on the Court and started scheming to undo abortion rights for political, not legal, reasons!
“Social Justice Warriors” like Craig have been fighting the good fight for decades. But, at this point, it’s going to depend on the NDPA and other young progressive groups to take on the extremist right at the ballot box and to take back their individual rights — really all of our individual rights.
Otherwise, they will find themselves as a disempowered counterculture, hiding out and trying to keep ahead of Ray Bradbury’s firemen in Fahrenheit 451!
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL. v. ARTEAGA-MARTINEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 19–896. Argued January 11, 2022—Decided June 13, 2022
Respondent Antonio Arteaga-Martinez is a citizen of Mexico who was re- moved in July 2012 and reentered the United States in September 2012. U. S. Immigration and Customs Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest in 2018. ICE reinstated Arte- aga-Martinez’s earlier removal order and detained him pursuant to its authority under the Immigration and Nationality Act. See 8 U. S. C. §1231(a). Arteaga-Martinez applied for withholding of removal under §1231(b)(3), as well as relief under regulations implementing the Con- vention Against Torture, based on his fear that he would be persecuted or tortured if he returned to Mexico. An asylum officer determined he had established a reasonable fear of persecution or torture, and the Department of Homeland Security referred him for withholding-only proceedings before an immigration judge.
After being detained for four months, Arteaga-Martinez filed a peti- tion for a writ of habeas corpus in District Court challenging, on both statutory and constitutional grounds, his continued detention without a bond hearing. The Government conceded that Arteaga-Martinez would be entitled to a bond hearing after six months of detention based on circuit precedent holding that a noncitizen facing prolonged deten- tion under §1231(a)(6) is entitled by statute to a bond hearing before an immigration judge and must be released unless the Government establishes, by clear and convincing evidence, that the noncitizen poses a risk of flight or a danger to the community. The District Court granted relief on Arteaga-Martinez’s statutory claim and ordered the Government to provide Arteaga-Martinez a bond hearing. The Third Circuit summarily affirmed. At the bond hearing, the Immigration
2 JOHNSON v. ARTEAGA-MARTINEZ Syllabus
Judge considered Arteaga-Martinez’s flight risk and dangerousness and ultimately authorized his release pending resolution of his appli- cation for withholding of removal.
Held: Section 1231(a)(6) does not require the Government to provide noncitizens detained for six months with bond hearings in which the Government bears the burden of proving, by clear and convincing evi- dence, that a noncitizen poses a flight risk or a danger to the commu- nity. Pp. 4–10.
(a) Section 1231(a)(6) cannot be read to require the hearing proce- dures imposed below. After the entry of a final order of removal against a noncitizen, the Government generally must secure the noncitizen’s removal during a 90-day removal period, during which the Government “shall” detain the noncitizen. 8 U. S. C. §§1231(a)(1), (2). Beyond the removal period, §1231(a)(6) defines four categories of noncitizens who “may be detained . . . and, if released, shall be subject to [certain] terms of supervision.” There is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings with the procedures mandated by the Third Circuit. The statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required. Faithfully applying precedent, the Court cannot discern the bond hearing procedures required below from §1231(a)(6)’s text. Pp. 4–6.
(b) Arteaga-Martinez argues that §1231(a)(6)’s references to flight risk, dangerousness, and terms of supervision, support the relief or- dered below. Similarly, respondents in the companion case, see Gar- land v. Gonzalez, 594 U. S. ___, analogize the text of §1231(a)(6) to that of 8 U. S. C. §1226(a), noting that noncitizens detained under §1226(a) have long received bond hearings at the outset of detention. Assuming without deciding that an express statutory reference to “bond” (as in §1226(a)) might be read to require an initial bond hearing, §1231(a)(6) contains no such reference, and §1231(a)(6)’s oblique reference to terms of supervision does not suffice. The parties agree that the Gov- ernment possesses discretion to provide bond hearings under §1231(a)(6) or otherwise, but this Court cannot say the statute re- quires them.
Finally, Arteaga-Martinez argues that Zadvydas v. Davis, 533 U. S. 678, which identified ambiguity in §1231(a)(6)’s permissive language, supports a view that §1231(a)(6) implicitly incorporates the specific bond hearing requirements and procedures imposed by the Court of Appeals. In Zadvydas, this Court construed §1231(a)(6) “in light of the Constitution’s demands” and determined that §1231(a)(6) “does not permit indefinite detention” but instead “limits an alien’s post-re- moval-period detention to a period reasonably necessary to bring about
Cite as: 596 U. S. ____ (2022) 3 Syllabus
that alien’s removal from the United States.” 533 U. S., at 689. The bond hearing requirements articulated by the Third Circuit, however, reach substantially beyond the limitation on detention authority Zadvydas recognized. Zadvydas does not require, and Jennings v. Ro- driguez, 583 U. S. ___, does not permit, the Third Circuit’s application of the canon of constitutional avoidance. Pp. 6–8.
(c) Constitutional challenges to prolonged detention under §1231(a)(6) were not addressed below, in part because those courts read §1231(a)(6) to require a bond hearing. Arteaga-Martinez’s alter- native theory that he is presumptively entitled to release under Zadvydas also was not addressed below. The Court leaves these argu- ments for the lower courts to consider in the first instance. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7. Pp. 8–10.
Reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAGAN, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined as to Part I. BREYER, J., filed an opinion concurring in part and dissenting in part.
***********************************
I suppose the only good news here is:
The Constitutional issue remains viable (but, don’t hold your breath); and
Nobody else joined Thomas’s astounding, anti-historical, anti-
American bogus arguments on stripping immigrants of all due process rights and leaving their fate entirely in the hands of politicos.
Yet, the fact that an individual with views as outrageous, legally and morally wrong, and deeply anti-American as Thomas sits on our highest Court says something is seriously wrong with our justice system and our democracy.
Also outrageously, Thomas called for the overruling of Zadvydas v. Davis, an important case that prevents the Government from subjecting certain deportable, but unremovable, individuals to lifetime “civil imprisonment and punishment” in the “New American Gulag.”
Biden administration defends immigration policy before Sixth Circuit
The federal government argued in defense of a policy instituted by President Biden that prioritizes the deportation of individuals deemed national security threats.
CINCINNATI (CN) — Federal courts cannot impose nationwide injunctions to counteract guidance handed down by the Department of Homeland Security regarding enforcement of federal immigration law, President Joe Biden’s administration argued Friday before an appeals court.
Prioritized deportation of illegal immigrants who “pose the greatest threats to national security, public safety, and border security” is within the scope of DHS’s authority and does not run counter to established immigration law, according to the administration, which was sued by several states after the guidance was implemented in September 2021.
Ohio, Arizona and Montana challenged the “balancing test” adopted as part the guidance, claiming the discretionary nature of the analysis of an immigrant’s mental health and criminal history exceeds the statutory authority granted to DHS and Immigration and Customs Enforcement, or ICE.
U.S. District Judge Michael Newman, a Donald Trump appointee, sided with the states and granted their motion for a preliminary injunction in March 2022, finding federal law “left no flexibility” when it comes to detainment of illegal immigrants during the removal process.
“The permanent guidance allows noncitizens to be released on removal-period and post-removal bond based on factors Congress did not intend DHS to consider and in contrast to DHS’s own regulations,” he said.
Shortly thereafter, a Sixth Circuit panel stayed the injunction pending the outcome of Biden’s appeal.
In its brief to the Cincinnati-based appeals court, the federal government criticized the outlandish nature of the lawsuit and cited Chief U.S. Circuit Judge Jeffrey Sutton when he argued courts have no authority to adjudicate federal immigration policy.
“For most of our nation’s history, a lawsuit like this one would have been unheard of: states did not sue the federal government based on the indirect, downstream effects of federal policies,” the brief states. “And district judges did not purport to enter nationwide injunctions, which ‘take the judicial power beyond its traditionally understood uses,’ ‘incentivize forum shopping,’ and ‘short-circuit’ the judicial process by forcing appellate courts to resolve complex disputes on short notice and without the benefit of percolation or full briefing.”
The Biden administration argued the states lack standing to sue and said Newman’s decision would set a precedent to “allow the federal courts to be drawn into all manner of generalized grievances at the behest of states seeking to secure by court order what they were unable to obtain through the political process.”
. . .
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked about the harm caused to the federal government if the appeals court allowed the injunction to remain in place.
“It certainly leads to confusion,” Tenny answered. “It leads to officers not being able to conduct their operations in a normal course.”
The attorney emphasized the guidance does not run counter to immigration law and requires officers to zero in on dangerous criminals because of the focus on individuals deemed threats to national security.
“It makes you start to think guidance just isn’t reviewable,” Sutton quipped.
Tenny agreed that most guidance is not. He said “there are circumstances … with guidance that requires people to do something where it could be reviewed,” but pointed out such a scenario is “worlds apart from here.”
. . . .
Sutton pushed back against the idea of states challenging the federal government in this fashion, and said in the past, “most people would have laughed at the idea … of states coming in to challenge the guidance.”
“Let’s say you’re right,” the judge said. “I’m still trying to figure out what a victory looks like for you.”
“All that we want,” Flowers answered, “is what the district court did.”
Sutton expressed skepticism of immigration enforcement statistics cited by the states’ attorney and said he was “so dubious about relying on these numbers” because of the Covid-19 pandemic and other factors.
Flowers countered with evidence that ICE officials have gone on the record and claimed the drop in enforcement is based solely on compliance with the guidance.
“Their key theory,” Sutton said, “is that elections matter. That resonates to me when it’s very unclear what the courts could do [in this situation].”
In his rebuttal, Tenny argued no administration has ever fully enforced federal immigration law because there simply aren’t enough resources.
He also disputed the statistics cited by his opposing counsel.
“There is so much going on in the world here,” Tenny said. “To say changes in numbers is because of the guidance is extraordinary.”
U.S. Circuit Judges R. Guy Cole Jr. and Karen Moore, both Bill Clinton appointees, also sat on the panel.
Sutton said the court hopes to adhere to the three-month timeframe established at the outset of the appeal, which would set release of the panel’s opinion for early July.
***********************
Read the complete report at the link.
Way too early for a “Due Process Victory Dance” 💃🏻 here. Oral argument is not always an accurate predictor of results.
But, preliminary indications were that the 6th Cir. panel might have seen through the “disingenuous smokescreen” being thrown up by GOP Nativist State AGs and Trumpster U.S. District Judge Michael Newman. The latter was overeager to inject himself into the legitimate efforts by Mayorkas to return some rationality, order, and fiscal prudence to ICE Enforcement that was reeling and discredited by the biases and uncontrolled excesses of the Trump era.
And, thankfully, Chief Judge Jeffrey Sutton also was skeptical about statistics cited by the States derived from DHS Enforcement. For example, so-called “apprehension statistics” from DHS are often distorted — in part because, as the result of the Title 42 travesty, CBP apprehended some of the same individuals over and over again without any formal determinations.
Indeed, many of those “apprehended” merely soughta legal determination of their right to asylum — something that both the Trump and Biden Administration have stubbornly and illegally denied to them.
Folks who wrongfully are denied a chance to make a legal application for protection at the border and seek to turn themselves in to get some sort of review of their situation in a timely matter are not legitimate “apprehensions” nor do they pose any threat. Indeed, the threat to America here comes from lawless actions by DHS at the Southern Border, attempts by GOP-controlled States to substitute myths and nativism for legitimate policies, and overly permissive Federal Courts who have failed to put a stop to either of the foregoing abuses — indeed sometimes participating in and furthering the mocking of the rule of law and fundamental fairness!
The statements made by Bush II appointee Chief Judge Sutton are actually in line with “traditional conservative judging” that consistently treated Executive exercises of prosecutorial discretion in immigration as beyond the scope of judicial review. In my days in INS General Counsel, we were extremely effective in defending the “hands off PD” position before Federal Judges of all philosophies.
That’s why the Garland DOJ’s failure to “wipe up the floor” with these baseless suits from out of line GOP AGs seeking to turn Federal litigation into a nativist political sideshow is so shocking to those of us who recognize how the system should, and has in the past, worked.
If the 6th Circuit does uphold the “Mayorkas Memo,” we might well be heading for a Circuit conflict. I doubt that the 5th Circuit will exercise meaningful review over Judge Tipton’s power grab in Texas.
That could well leave it up to the Supremes — some time from now.
In the meantime, the ICE Enforcement system probably will continue to reel from the unwarranted interference inflicted by Trump Judges like Tipton, Newman, and some of their righty colleagues.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21–147. Argued March 2, 2022—Decided June 8, 2022
Respondent Robert Boule owns a bed-and-breakfast—the Smuggler’s Inn—in Blaine, Washington. The inn abuts the international border between Canada and the United States. Boule at times helped federal agents identify and apprehend persons engaged in unlawful cross-bor- der activity on or near his property. But Boule also would provide transportation and lodging to illegal border crossers. Often, Boule would agree to help illegal border crossers enter or exit the United States, only to later call federal agents to report the unlawful activity.
In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Pa- trol agent, that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler’s Inn. When Agent Egbert observed one of Boule’s vehicles returning to the inn, he sus- pected that the Turkish national was a passenger and followed the ve- hicle to the inn. On Boule’s account, Boule asked Egbert to leave, but Egbert refused, became violent, and threw Boule first against the ve- hicle and then to the ground. Egbert then checked the immigration paperwork for Boule’s guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening.
Boule filed a grievance with Agent Egbert’s supervisors and an ad- ministrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by re- porting Boule’s “SMUGLER” license plate to the Washington Depart- ment of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Boule’s tax re- turns. Boule’s FTCA claim was ultimately denied, and Border Patrol took no action against Egbert for his use of force or alleged acts of re- taliation. Boule then sued Egbert in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Invoking Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the Dis- trict Court to recognize a damages action for each alleged constitu- tional violation. The District Court declined to extend Bivens as re- quested, but the Court of Appeals reversed.
Held: Bivens does not extend to create causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim. Pp. 5–17.
(a) In Bivens, the Court held that it had authority to create a dam- ages action against federal agents for violating the plaintiff’s Fourth Amendment rights. Over the next decade, the Court also fashioned new causes of action under the Fifth Amendment, see Davis v. Pass- man, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green, 446 U. S. 14. Since then, however, the Court has come “to appreciate more fully the tension between” judicially created causes of action and “the Constitution’s separation of legislative and judicial power,” Her- nández v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply a similar cause of action for other alleged constitutional violations, see, e.g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367. Rather than dispense with Bivens, the Court now emphasizes that rec- ognizing a Bivens cause of action is “a disfavored judicial activity.” Ziglar v. Abbasi, 582 U. S. ___, ___.
The analysis of a proposed Bivens claim proceeds in two steps: A court asks first whether the case presents “a new Bivens context”—i.e., is it “meaningfully different from the three cases in which the Court has implied a damages action,” Ziglar, 582 U. S., at ___, and, second, even if so, do “special factors” indicate that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Id., at ___. This two-step inquiry often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. Further, under the Court’s precedents, a court may not fash- ion a Bivens remedy if Congress already has provided, or has author- ized the Executive to provide, “an alternative remedial structure.” Ziglar, 582 U. S., at ___. Pp. 5–8.
(b) The Court of Appeals conceded that Boule’s Fourth Amendment claim presented a new Bivens context, but its conclusion that there was no reason to hesitate before recognizing a cause of action against Agent Egbert was incorrect for two independent reasons. Pp. 9–13.
(1) First, the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Hernández, 589 U. S., at ___. In Hernández, the Court declined to create a damages remedy for an excessive-force claim against a Border Patrol agent be- cause “regulating the conduct of agents at the border unquestionably has national security implications.” Id., at ___. That reasoning applies with full force here. The Court of Appeals disagreed because it viewed Boule’s Fourth Amendment claim as akin to a “conventional” exces- sive-force claim, as in Bivens, and less like the cross-border shooting in Hernández. But that does not bear on the relevant point: Permitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief. Further, the Court of Appeals’ analysis betrays the pitfalls of applying the special-factors analysis at too gran- ular a level. A court should not inquire whether Bivens relief is appro- priate in light of the balance of circumstances in the “particular case.” United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask “[m]ore broadly” whether there is any reason to think that “judicial intrusion” into a given field might be “harmful” or “inappropriate,” id., at 681. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no. Pp. 9–12.
(2) Second, Congress has provided alternative remedies for ag- grieved parties in Boule’s position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate “[a]lleged violations” and accept grievances from “[a]ny persons.” 8 CFR §§287.10(a)–(b). Boule claims that this regulatory grievance pro- cedure was inadequate, but this Court has never held that a Bivens alternative must afford rights such as judicial review of an adverse determination. Bivens “is concerned solely with deterring the uncon- stitutional acts of individual officers.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 71. And, regardless, the question whether a given remedy is adequate is a legislative determination. As in Her- nández, this Court has no warrant to doubt that the consideration of Boule’s grievance secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ___. Pp. 12–13.
(c) There is no Bivens cause of action for Boule’s First Amendment retaliation claim. That claim presents a new Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy. Extending Bivens to alleged First Amendment vi- olations would pose an acute “risk that fear of personal monetary lia- bility and harassing litigation will unduly inhibit officials in the dis- charge of their duties.” Anderson v. Creighton, 483 U. S. 635, 638. In light of these costs, “Congress is in a better position to decide whether or not the public interest would be served” by imposing a damages ac- tion. Bush, 462 U. S., at 389. The Court of Appeals’ reasons for ex- tending Bivens in this context—that retaliation claims are “well-estab- lished” and that Boule alleges that Agent Egbert “was not carrying out official duties” when the retaliation occurred—lack merit. Also lacking merit is Boule’s claim that this Court identified a Bivens cause of ac- tion under allegedly similar circumstances in Passman. Even assum- ing factual parallels, Passman carries little weight because it predates the Court’s current approach to implied causes of action. A plaintiff cannot justify a Bivens extension based on “parallel circumstances” with Bivens, Passman, or Carlson—the three cases in which the Court has implied a damages action—unless the plaintiff also satisfies the prevailing “analytic framework” prescribed by the last four decades of intervening case law. Ziglar, 582 U. S., at ___–___. Pp. 13–16.
998 F. 3d 370, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion con- curring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.
KEY QUOTE FROM JUSTICE SOTOMAYOR’S CONCURRENCE DISSENT (joined by Justices Breyer and Kagan):
This Court’s precedents recognize that suits for damages play a critical role in deterring unconstitutional conduct by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive meaningful redress. The Court’s decision today ignores our repeated recognition of the importance of Bivens actions, particularly in the Fourth Amendment search-and-seizure context, and closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents. I respectfully dissent from the Court’s treat- ment of Boule’s Fourth Amendment claim.
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Thus, the Border Patrol is free to egregiously violate Constitutional rights of citizens and other “persons” in the U.S. without meaningful accountability. But, I suppose it’s what one might expect from a right-majority Court that generally views rights of corporations and guns as fundamental while treating most individual rights of persons in the U.S. as expendable.
As for Justice Thomas’sludicrous suggestion that filing a complaint with the CBP hierarchy is a “remedy” for wrongdoing? That’s in the “sick joke” category as anyone who has actually tried to file such a complaint would know.See, e.g., https://www.nbcnews.com/politics/immigration/aclu-asks-dhs-take-action-complaints-abuse-misconduct-u-s-n1259657. Clearly, Thomas and his colleagues live in a privileged “parallel universe” where they have never had to rely on the DHS’s internal bureaucracy for redress of Constitutional violations!
As cogently pointed out by Justice Sotomayor, the majority’s intentional misuse and mischaracterization of the “national security fiction” to immunize government conduct from meaningful review in a case that actually has little or nothing to do with national security or foreign relations should also be of grave concern to all of us. Right-wing judges’ propensity to use “fictions” and “pretexts” to mask their real intent and to arrive at preconceived results is a major exercise in intellectual dishonesty!
It also reinforces my observation that it is wrong to keep appointing Justices who lack personal experience with representing individuals within our broken, dysfunctional, and often lawless immigration bureaucracy, which currently includes the U.S. Immigration “Courts” at EOIR.In many professions and occupations, the “future movers and shakers” are required to “start at the retail level” — like the rest of us — so that they understand their “customers'” needs, wants, expectations, problems, and concerns. Why do we exempt our most powerful judges from this “basic training” in delivering justice to human beings at the “retail level” of our justice system?
While many folks are too blind to see it, the lack of informed judicial oversight of the Constitutional performance of DHS, DOJ, DHS, DOS, DOL and the rest of the often underperforming USG immigration bureaucracy undermines the Constitutional rights of everyone in America, including citizens!
Life-tenured Federal Judges might act as if they are “immunized” and “above the fray” (also, to a disturbing extent, above the law and our Constitution, particularly where migrants are concerned). Meanwhile, it’s “the people’s rights” that are on the chopping block with an unprincipled “out of touch” far-right judiciary too often wielding the ax!
Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.
P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!
Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?
I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?
Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!
The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.
It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?
Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!
Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?
These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”
When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.
The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.
Stacy Caplow Associate Dean of Experiential Education & Professor of Law Brooklyn Law PHOTO: Brooklyn Law website
As Dean Caplow cogently points out:
Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.
While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!
As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!
There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”
Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence).All of us who care about the future of American justice should be asking why he isn’t doing his job!
Held: Federal courts lack jurisdiction to review facts found as part of dis- cretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i). Pp. 6–17.
From Justice Gorsuch’s dissent (joined by Justices Breyer, Kagan, & Sotomayor):
The majority concludes that courts are powerless to cor- rect an agency decision holding an individual ineligible for relief from removal based on a factual error, no matter how egregious the error might be. The majority’s interpretation has the further consequence of denying any chance to cor- rect agency errors in processing green-card applications outside the removal context. Even the government cannot bring itself to endorse the majority’s arresting conclusions. For good reason. Those conclusions are at war with all the evidence before us. They read language out of the statute and collapse the law’s clear two-step framework. They dis- regard the lessons of neighboring provisions and even ig- nore the statute’s very title. They make no sense of the statute’s history. Altogether, the majority’s novel expan- sion of a narrow statutory exception winds up swallowing the law’s general rule guaranteeing individuals the chance to seek judicial review to correct obvious bureaucratic mis- steps. It is a conclusion that turns an agency once account- able to the rule of law into an authority unto itself. Perhaps some would welcome a world like that. But it is hardly the world Congress ordained.
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Justice Barrett wrote the majority opinion.
Interestingly, neither the Respondent nor the Solicitor General defended the 11th Circuit’s decision. So, the Court appointed Taylor A.R. Meehan as amicus to defend that decision. Her “no jurisdiction” statutory argument prevailed.
Looking at rulings like this, the makeup of the Supremes, and the bleak prospects for Article I in an ideologically divided Congress, the composition of the Immigration Courts and the BIA becomes even more significant.
As Justice Gorsuch points out, in many important cases, even the most obvious and egregious mistakes from EOIR Judges will go uncorrected by the Article IIIs. So, getting the results right in the first place and having higher quality appellate review at the BIA becomes even more “life determining.”
As judicial vacancies arise, it’s critical that NDPA members who are eligible to apply do so in large numbers! That also goes for the U.S. Magistrate Judges and the Article IIIs!
As you’ve probably heard by now, within the next few months, the Supreme Court is expected to overturnRoe v. Wade, ending the national right to an abortion. If that happens, the medical procedure will be severely restricted or just outright banned in about half the country. A lot of people are extremely upset about this because, among other things, they think the government should not get to treat 50% of the population like second-class citizens, and that pregnant people should be allowed to decide what to do with their own bodies, just like men can chose to, say, have a vasectomy without a bunch of elected officials weighing in.
Yet somehow Montana senator Steve Daines doesn’t seem to understand why anyone would be griping about the catastrophic, dystopian situation that is about to befall women in the U.S. In fact, Daines appears to think he’s figured out a huge “gotcha” when it comes to liberals who want to ensure women have control of their own bodies: that “the left” cares more about the eggs of certain reptiles and birds than it does about human women’s eggs. Seriously.
Speaking on the Senate floor Tuesday, Daines opined: “If you were to take or destroy the eggs of a sea turtle—now I said the eggs, not the hatchlings that’s also a penalty but the eggs—the criminal penalties are severe: up to a $100,000 fine and a year in prison. Now why? Why do we have laws in place that protect the eggs of a sea turtle or the eggs of eagles? Because, when you destroy an egg, you’re killing a preborn baby sea turtle or preborn baby eagle. Yet when it comes to a preborn human baby, rather than a sea turtle, that baby will be stripped of all protections in all 50 states, under the Democrats’ bill that we’ll be voting on tomorrow. Is that what the America the left wants?” (Daines was referring to the Women’s Health Protection Act, legislation that would codify the constitutional right to an abortion into federal law, which the Senate failed to pass on Wednesday.)
Curiously, at no point in this speech lamenting that human women have too many rights compared to reptiles and birds, did Daines—who actually loveskillinglivingthings—acknowledge that humans do not lay eggs, that human embryos stay inside the mother until they are born, and that people are not endangered species. Must’ve been a mere oversight.
Senator Ron Johnson tells pregnant people to suck it up and drive out of state for an abortion if they want one
In the likely event that Roe v. Wade is gutted, countless lives will be destroyed, whether it‘s that of the rape victim who will have no choice but to give birth to her attacker’s kid, the woman living in poverty who can’t afford to raise a child, the literal child who has been impregnated by an abusive family member, or the person who simply had a different set of plans for their life that did not involve becoming a parent. Not to mention, the pregnant person who decides they have no choice but to undergo an illegal, risky abortion rather than be forced to give birth. But according to Republican senator Ron Johnson? None of this is a big deal and people are being hysterical over nothing.
Speaking to The Wall Street Journal, the Wisconsin lawmaker, who is up for reelection this year, said he doesn’t expect abortion to come up on the campaign trail because it’s basically a nonissue. “It might be a little messy for some people, but abortion is not going away,” Johnson said, an absolutely bizarre choice of words—not to mention, sentiment—given the history of women bleeding out and dying after unsafe abortions. He blithely added that though he doesn’t expect a 19th-century Wisconsin law banning abortions except to save the mother will go into effect if Roe is reversed, pregnant people can always go to neighboring Illinois if they want to obtain the medical procedure.
As so many people have noted, the reversal of Roe—and ensuing bans in numerous states—would disproportionately impact poor women and women of color. Those are people that, in fact, can’t necessarily just drive to Illinois (or the neighboring state that applies to them) because they can‘t get the time off of work, or don’t have a car, or have other children at home they can’t be away from for the night—or any of the many other reasons that Johnson apparently can’t think of. As for the idea that the 1849 Wisconsin law banning abortions won’t stand, Johnson is reportedly likely wrong about that too. As the Milwaukee Journal Sentinelwrote last week, “Republican lawmakers for decades have made sure to preserve the 1849 ban in hopes that Roe would someday be overturned,” and the Republicans running for governor in the state “have [all] strongly opposed abortion and would be unlikely to sign legislation loosening the ban.”
Johnson, of course, has a long history of extremely shitty takes. As one of the most vocal proponents of Trump’s “big lie,” he repeatedly downplayed January 6, variously claiming that the attempted coup wasn’t “an armed insurrection,” even though that’s exactly what it was; that the rioters were not actually Trump supporters but “provocateurs” impersonating Trump supporters; and that he was never once worried for his life because the mob that stormed the Capitol were there to overturn an election, not protest for equal rights for Black people. He’s also a major purveyor of COVID misinformation, dispenses anti-vaccine rhetoric, and was temporarily kicked off of YouTube for promoting bogus cures. In 2010, he opposed a Wisconsin bill that would have eliminated the statute of limitations for child sexual abuse victims to bring lawsuits. And four years later, he reportedly did not tell the “police, Senate or Wisconsin officials that a former aide was allegedly sexually assaulted by a state lawmaker.”
So yeah, it’s not surprising that he has no earthly clue why any of this is a big deal, but that doesn’t make it any less crappy. “I just don’t think this is going to be the big political issue everybody thinks it is, because it’s not going to be that big a change,” he told the Journal, like only the absolutely most ignorant elected official can.
Nothing to see here, just Trump’s election coconspirator telling Pennsylvania to trash absentee ballots so it’d look like Trump won
Apparently John Eastman saw no potential issues here, hence putting the plot in actual writing. Per Politico:
Attorney John Eastman urged Republican legislators in Pennsylvania to retabulate the state’s popular vote—and throw out tens of thousands of absentee ballots—in order to show Donald Trump with a lead, according to newly unearthed emails sent in December 2020, as Trump pressured GOP lawmakers to subvert his defeat. This recalculation, he posited in an exchange with one GOP state lawmaker, “would help provide some cover” for Republicans to replace Joe Biden’s electors from the state with a slate of pro-Trump electors, part of a last-ditch bid to overturn the election results.
Per the exchange, Eastman suggested that GOP legislators could simply cite their concerns with Pennsylvania’s absentee ballot procedures and then use historical data to “discount each candidates’ totals by a prorated amount based on the absentee percentage those candidates otherwise received.”
“Having done that math, you’d be left with a significant Trump lead that would bolster the argument for the Legislature adopting a slate of Trump electors—perfectly within your authority to do anyway, but now bolstered by the untainted popular vote,” Eastman wrote in a Dec. 4, 2020 email to Pennsylvania Rep. Russ Diamond. “That would help provide some cover.”
The suggestion to simply throw out ballots like that was a very cool, very legal thing to do came out of a batch of emails obtained via public records requests by the Colorado Ethics Institute, which reportedly sent them to the January 6 committee. Neither the panel nor Eastman’s attorney responded to Politico’s requests for comment. Back in March, a federal judge said that Trump and Eastman “most likely” committed felonies when they tried to overturn the results of the 2020. “The illegality of the plan was obvious,” Judge David Carter wrote. Even more so now!
Guy whose entire shtick is to ban things from the classroom now requiring lessons about the harms of communism in the classroom
We’re going to guess that no, Ron DeSantis does not see the irony here. Per The Guardian:
Discussions of gender identity and sexual preference are banned in many Florida classrooms because of governor Ron DeSantis’s “don’t say gay” law, alongside dozens of math textbooks blocked for “prohibited topics.” Now the Republican who has loudly condemned what he sees as the “indoctrination” of young people has made another subject compulsory: students must receive at least 45 minutes’ instruction every November about the “victims of communism.”
In a ceremony Monday at Miami’s iconic Freedom Tower, where tens of thousands of Cuban immigrants fleeing Fidel Castro’s revolution were admitted into the US between 1962 and 1974, DeSantis signed into law House Bill 395, designating 7 November as Victims of Communism Day…. The instruction will begin in the 2023-2024 school year, DeSantis said, and will require teaching about Joseph Stalin, Mao Zedong and Fidel Castro, as well as “poverty, starvation, migration, systemic lethal violence, and suppression of speech” endured under their leaderships in the Soviet Union, China and Cuba respectively.
Mispronouncing the name of Che Guevara as “Che Kay-Farra,” DeSantis used the ceremony to yell at students who wear T-shirts with the revolutionary leader’s image on it. “You can see at a college campus students flying the hammer and sickle from the old Soviet Union flag, you will see students that will have T-shirts with Che Guevara, you will see students that will idolize people like Mao Zedong,” he said, according to The Guardian. “That to me, this speaks of a tremendous ignorance about what those individuals represented and the evils that communism inflicted on people throughout the world…. While it’s fashionable in some circles to whitewash the history of communism, Florida will stand for truth and remain as a beachhead for freedom.”
Earlier this year, Florida banned public schools and private businesses from inflicting “discomfort” on white people during lessons or training about discrimination, a ridiculous law that grew out of the conservative hysteria over critical race theory. Florida, of course, now also prohibits teachers from discussing gender identity or sexual orientation in grades k–3 (and, critics say, beyond).
Strangely, DeSantis has not said anything about introducing a bill requiring schools to teach students about the history of petty tyrants.
Rep. Elise Stefanik tries her hand at comedy
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“Dehumanization” by the GOP started with the “war on immigrants” during the Trump Administration, has been enabled and furthered by GOP-appointed righty judges (see, e.g., “Dred Scottification”), and now threatens the legal and human rights of all groups that the GOP doesn’t like. That’s a big list, folks, and many of YOU and those you care about are likely on it! ☠️
No institution welcomes scrutiny. Maintaining internal cohesion and operational focus demands informational boundaries against the rest of the world. This wish deserves respect, but not automatic submission, especially when matters of vast public consequence are at stake.
That’s why news media take it as a duty to ignore organizational secrecy rules — except when disclosure would cause unwarranted harm — and insist that public awareness must outweigh institutional convenience. A document leaked from most any federal agency that upended longstanding policy would unquestionably be legitimate news, even if it was preliminary, even if exposure would gum up a cozy internal process, even if the leak broke agency rules.
But not when it comes to the Supreme Court.
Of all our governmental institutions, it is unique in the awe and deference with which our news media, for all their endless claims to seek truth aggressively, treat it.
To be sure, secrecy has a place in the judicial system. Grand juries, for example, are prosecutorial contrivances where untested evidence is presented and people suspected of wrongdoing have weak adversarial protections. Damaging the innocent by publicizing unrebutted claims is a strong possibility. Secrecy makes sense.
But the issue here is altogether different. The leak was of a 98-page draft opinion with 118 footnotes, not a filched personal email or the secondhand account of an overheard chat. It was deeply researched and carefully composed and was distributed internally nearly three months ago, and it signals a major change in an explosive area of public policy. Publishing it doesn’t endanger national security and puts no innocent lives at risk.
So should the Supreme Court, virtually alone among core public institutions, be entitled to say, “We’ll show it to you when we’re ready for you to see it?”
At best, that exceptionalist claim rests on a carefully nurtured myth of the court as a scholarly sanctuary in which big questions of public purpose are engaged through reflection, historical inquiry and quiet, reasoned debate, a process of ripening that must take place behind the sealed doors of an intellectual greenhouse.
That fiction lost credibility a long time ago, at least for anybody who was paying attention in the year 2000 when the court, with the flimsiest of pretexts, awarded the presidency to the candidate with fewer votes but of the same party as its majority.
Indeed, what standards of accountability govern the court? Its members serve life terms free from disciplinary oversight. To get aboard, nominees routinely lie before Congress — about their personal behavior and their judicial philosophy — rendering the Senate’s authority to approve candidates meaningless. Serving justices are not held to any discernible standard of independence. Their right to rule on matters in which close family have personal stakes, or on which they have clear prior leanings, is completely unregulated.
And then there’s the recent sharp increase in furtive rulings reached off-season without full briefing or oral argument — known as the shadow docket — which has further narrowed the window of public visibility. Last summer the court issued 11 such rulings, up from three in 2016, in a slapdash and opaque workaround beloved of the conservative majority that produces jurisprudence that “every day becomes more unreasoned, inconsistent, and impossible to defend,” as dissenting liberal Justice Elena Kagan said.
Perhaps the Roe leak will inaugurate a new era for the court. Maybe there will be more impertinent reporting that exposes the reasoning, bargaining, trade-offs and personal dynamics that drive constitutional lawmaking at the highest levels. Rather than something to be dreaded, such transparency would leave us all better informed and more fully empowered to play the role the system prescribes for us — to shape our collective future.
Edward Wasserman is professor of journalism and former dean of the Graduate School of Journalism at UC Berkeley.
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Read Wasserman’s full article at the link.
He says, “No institution welcomes scrutiny.” Very true. Any leader or group of leaders who claim the contrary are probably lying.
Scrutiny sometimes brings accountability. And, as our system deteriorates before our eyes, that’s something that has become rare in today’s politics and public life.
Critics were stunned Saturday after Supreme Court Justice Clarence Thomas scolded Americans for not accepting controversial rulings — after his own wife battled against the results of a legitimate presidential election.
Thomas chided a distraught public in comments Friday at a judicial conference in Atlanta following the leak of a draft Supreme Court opinion that would gut Roe v. Wade and a half-century of the right to an abortion.
He complained that Americans are “addicted” to results they want — while “not living with” rulings they oppose. He warned that the court will not be “bullied” in the face of protest. Declining respect for the law and institutions, Thomas warned, “bodes ill for a free society.”
Thomas detractors were agog. Not only has his wife, Virginia “Ginni” Thomas, refused to “live with” the presidential election, he was the sole Supreme Court justice to vote that former President Donald Trump should not have to release his White House documents to the House committee investigating last year’s insurrection.
Thomas has also repeatedly attempted to rip up legal precedence set by the court.
“The irony is so thick you wonder if it’s maybe a Clarence Thomas impersonator,” former U.S. Attorney Harry Litman said on MSNBC Saturday.
“Among other things, this is a guy who has spent a lifetime trying to take a battering ram to all the Supreme Court major precedents” of law, Litman added. “He’s now saying people don’t respect the law enough. That’s even leaving aside all the controversies he has engendered, as has his wife. It’s just … remarkable.”
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Read the full article at the link.
There is no end to the hypocrisy and subversiveness of the Thomas Clan and the far-right.
(1) The Supreme Court’s construction of “physical force” in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), controls our interpretation of 18 U.S.C. § 16(a) (2018), which is incorporated by reference into section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i) (2018); the Court’s construction of “physical force” in United States v. Castleman, 572 U.S. 157 (2014), is inapplicable in this context.
(2) Because misdemeanor domestic abuse battery with child endangerment under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad with respect to § 16(a) and therefore is not categorically a crime of domestic violence under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).
PANEL:CREPPY, LIEBOWITZ, and PETTY, Appellate Immigration Judges.
OPINION: Judge Petty
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Sometimes, the BIA decides to “blow off” the Supremes! But not this time!
