Guest Post

  • March 16, 2015
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Decades ago, the late constitutional scholar Charles Black offered an important functional justification for giving federal courts the power to say “no” to unconstitutional laws and executive actions: It is the judicial power to say “no” that gives the judicial power to say “yes” its legitimating force. Government benefits mightily when a judicial opinion upholding official action puts at rest, if not an underlying policy debate, then at least the public’s interest in prolonging a constitutional battle about whether the challenged action is at least lawful.  Such seems to have been the result in 2011when the Supreme Court upheld the Affordable Care Act.  A judicial imprimatur can have this beneficial impact, however, only if the public understands that courts make independent judgments.

    For this reason, despite powerful legal arguments that U.S. District Court Judge Andrew Hanen should not have reached the merits of any issue regarding the Department of Homeland Security’s program of “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), the country may be better off once a court does so. My difficulty with Judge Hanen’s massively overwritten 123-page opinion in Texas v. United States is not that Texas got past threshold procedural barriers to judicial review. It is that, in an ideologically driven opinion, Judge Hanen simply gets the law wrong.

    As a formal matter, Judge Hanen grants Texas the preliminary injunction it seeks because he deems Texas likely to succeed in challenging the DAPA policy on a procedural basis, namely, publication of the policy without an opportunity for public comment under the Administrative Procedure Act. His conclusion on this point is wrong, as I discuss below, but perhaps foreordained by a more glaring error. Although Judge Hanen purports to rule only on procedural grounds, his opinion makes crystal clear that he thinks DAPA exceeds the DHS Secretary’s legal authority. His analysis is framed by an overarching narrative about how a supposedly feckless federal government is victimizing the helpless states by simultaneously hoarding to itself all authority over immigration and then abandoning a constitutional duty to protect the states from the burdens imposed by the presence in the U.S. of millions of undocumented immigrants. (If you want to see what judicial empathy for a plaintiff looks like, reading Judge Hanen’s 47-page analysis of Texas’s standing to sue would make a good start.) 

    Judge Hanen’s framing is doubly unfortunate. First, it ignores the ways in which the DAPA program would boost state economies and accompanying tax revenues. As 14 states and the District of Columbia have argued in an amicus brief supporting DAPA: “When immigrants are able to work legally—even for a limited time—their wages increase, they seek work compatible with their skill level, and they enhance their skills to obtain higher wages, all of which benefits State economies by increasing income and growing the tax base.” Moreover, Judge Hanen’s narrative of states as victims leads him to four outright mischaracterizations of DAPA.

    To see these misconceptions starkly, it is helpful to consider that the measures DHS Secretary Jeh Johnson implemented through two memoranda on November 20, 2014 effectively accomplish three things. First, they establish national immigration enforcement priorities, instructing all immigration agencies within DHS as to the highest priorities for detention and removal, as well as the criteria for a new program of deferred action for parents of U.S. citizens and other legally permanent residents. With or without DAPA, DHS’s immigration components would be free to follow these priorities in their law enforcement activities.

  • March 13, 2015
    Guest Post

    by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter

    Almost two years after the Boston Marathon bombings, the trial of the accused bomber, Dzhokhar  Tsarnaev, is underway in a federal courthouse about two miles from the scene of the horrific events of that April day. 

    Tsarnaev was charged with 30 federal crimes, 17 of which carry a possible death sentence.  A lengthy jury selection process delayed the start of the trial, with approximately 1,350 individuals completing juror questionnaires.  The defense filed four motions to change the venue, arguing that the widespread pre-trial media coverage and universal emotional impact of the bombings made a fair – and constitutionally sound – trial impossible.  Each of these motions failed, and rightfully so.  Once it began, the trial took an unexpected turn when Tsarnaev’s attorney admitted her client’s guilt during opening statements, surprising everyone – except, hopefully, her client.  While the prosecution still has to prove its case, this trial is largely now about whether Tsarnaev will live or die.

    The defense’s efforts to move the trial and its recent admission of their client’s guilt raise several questions.  Would the defense lawyers have admitted guilt so quickly if the trial had been held in a different venue?  Likely so.  While, as noted, the defense unsuccessfully tried four times to have the trial relocated, it is highly likely that the focus would still have been on saving their client’s life, rather than arguing his innocence.  The burden is on the prosecution, of course, but the evidence against Tsarnaev is overwhelming, from a video showing him set the backpack containing the bomb near a crowd of marathon spectators to his identification by a victim who lost both of his legs.  Moving the trial from Massachusetts would not have lessened this evidence’s weight.

    In deciding to admit guilt, the defense team also likely had in mind research suggesting that jurors selected for death penalty cases are more prone to find guilt because the attention given to the sentencing phase during the pre-trial voir dire process suggests that there will be one.  If that research is accurate – a topic beyond the focus of this short post – that bias would exist in Baltimore as well as in Boston.  (Interestingly, in 2005 the Massachusetts Governors Council on Capital Punishment – commissioned by then-Governor Mitt Romney to consider ways to make the imposition of a state death penalty “as infallible . . . as humanly possible” – proposed in its report that separate juries be empanelled for the guilt and sentencing phases of a capital trial to address this potential bias.)  Given the evidence against their client, it is likely that the defense strategy to admit guilt and focus on saving their client’s life would have been the same if the trial was held hundreds of miles from the scene of the marathon tragedy.

  • March 12, 2015
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and founder and director of the Witness to Guantanamo project

    Most Americans pay scant attention to Guantanamo.  In fact, many Americans believe it is closed or only houses convicted terrorists.  However, Guantanamo is still open, holding 122 men, 55 of whom have been cleared for release.

    As little as Americans know about Guantanamo, they know even less about the lives of detainees after they have been transferred out of Guantanamo.  The more fortunate detainees are resettled to their home country, where they can reunite with and be supported by their families.

    However, a number of the detainees cannot return home because of the instability of their home country, their home country does not want them, or they may be tortured or executed on their return.  These men must wait for other nations to accept them.  Initially, nations wanted to help President Obama close Guantanamo and agreed to accept prisoners.  However, as confidence in Obama’s initial pledge to close the detention center has waned, fewer nations are willing to reach out and receive former detainees.

    Nevertheless, because of the tenacity of Special Envoy Cliff Sloan – the State Department official tasked with resettling detainees from July 2013 to December 2014 – several countries have accepted detainees in the past 18 months.  In November 2014, Slovakia resettled two detainees.  One was Hussein Al-marfadi, originally from Yemen.

    In February 2015, the Witness to Guantanamo project interviewed Al-marfadi in a town in central Slovakia.  Although physically and psychologically scarred from 14 years of torture and brutal treatment at Guantanamo, he is an engaging, even-tempered and thoughtful man.  He was never charged with a crime and had been cleared for release years ago.

    Al-marfadi is a born storyteller with an amazing aptitude for details.  Unlike many detainees the project has interviewed, Al-marfadi provided a day-by-day description of his experiences, including comprehensive accounts of the torture and unspeakable treatment he suffered.  Interviews with detainees generally last for two hours.  His interview covered six-plus hours over two days.  Al-marfadi told W2G that it was important for him to tell his complete story.  He explained that his story was not only for history but also for the men still in Guantanamo.

  • March 11, 2015
    Guest Post

    by Raph Graybill, Fellow, Yale Institution for Social and Policy Studies (ISPS)

    This spring, western state legislatures will consider a series of laws demanding the end of public land management by the federal government.  The bills, which evoke the “Sagebrush Rebellion” anti-conservation movement of the 1970s, issue a state-law “demand” that the United States relinquish its title to American public lands and transfer ownership to states.

    Nearly two years after Utah passed its “Transfer of Public Lands Act” (TPLA), similar laws are under consideration in a majority of western states.  At stake is the core of American conservation policy.  Under state ownership, state governments could restrict public access, authorize commercial development or even divide lands for private sale.  Current federal environmental law effectively forecloses these possibilities, limiting privatization and preventing environmental degradation.

    Other outlets have addressed the policy wisdom of transfer demand laws, but very little work has been devoted to understanding their constitutional validity.  This post will address the legal arguments behind transfer demands with an eye toward understanding both the Constitution’s text and a newer, nontextual argument advanced by supporters.

    A legal analysis of transfer demands begins with the Constitution itself, and the plain text of the Constitution speaks directly to transfer demand laws.  The Property Clause, Article IV, § 3, cl. 2, states, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”  The text leaves little room for ambiguity over who may make decisions affecting United States land: Only Congress may initiate the sale or transfer of federal public lands.

  • March 9, 2015
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology and Director of Graduate Programs in Criminology at Merrimack College

    The report from the Department of Justice’s Civil Rights Division on the Ferguson, Mo. Police Department is a damning indictment of an out-of-control, lawless, and racist police department gone rogue.  Given the context and history of policing in Ferguson provided in the DOJ investigation, it seemed inevitable that an unarmed African American teenager would be shot dead by a white Ferguson police officer following a confrontation over a “Manner of Walking in Roadway” offense (or theft of cigarillos if that is to be believed).  One is tempted to question how it didn’t happen sooner than August 9, 2014.

    The Ferguson Police Department (FPD) arrested 460 individuals for outstanding warrants between October 2012 and October 2014: 96 percent of those arrested were African American.  According to the DOJ report, from 2011 to 2013, African Americans accounted for 95 percent of Manner of Walking in Roadway charges, 94 percent of Failure to Comply charges, 92 percent of Resisting Arrest charges, 92 percent of Peace Disturbance charges, and 89 percent of Failure to Obey charges.  “Despite making up 67 percent of the population, African Americans accounted for 85 percent of FPD’s traffic stops, 90 percent of FPD’s citations, and 93 percent of FPD’s arrests from 2012 to 2014.”  The race-based enforcement tactics and strategies employed by the FPD have a disparate impact on African Americans that is violative of the Equal Protection Clause of the Fourteenth Amendment.

    The DOJ report also found that the FPD has engaged in a “pattern and practice of constitutional violations (that primarily target African Americans) in stopping people without reasonable suspicion, arresting them without probable cause, and using unreasonable force.”  The FPD’s policies and practices were found to routinely violate the Fourth Amendment in racially profiling African Americans and disproportionally singling them out for “pedestrian checks,” “Failure to Comply,” and illegal “Stop and Identify” offenses.  DOJ found that the FPD consistently uses excessive force in violation of the Fourth Amendment and that African Americans accounted for almost 90 percent of the use of force incidents from 2010 to 2014.  FPD used force involving a canine bite 14 times during this time period and in all incidents the person bitten was African American.   

    The FPD also engages in a standard (and unlawful) practice of arresting individuals for engaging in activities that are protected under the First Amendment to the Constitution: “people are punished for talking back to officers, recording public police activities, and lawfully protesting perceived injustices.”