Guest Post

  • January 9, 2015
    Guest Post

    by Sejal Zota, Staff Attorney, National Immigration Project of the National Lawyers Guild

    Moones Mellouli is a native of Tunisia, but a lawful permanent resident of the United States, engaged to marry a U.S. citizen. The federal government is trying to deport Mellouli for his Kansas conviction for possessing a sock – yes a sock! – deemed drug paraphernalia when used to conceal or store drugs. ACS thrives on its law-student participation, so let’s build a hypothetical with socks to illustrate this important Supreme Court argument. When a DOJ attorney steps to the podium at the Court on Jan. 14 to defend this deportation order, imagine for a moment his credibility if he walked up wearing two different colored socks; say a pink argyle and a green striped one.

    But these socks would likely be hidden by the podium -- so imagine, instead, that he walked in on his hands to parade his mismatched stockings before the justices. Far-fetched perhaps, but the eyebrows this would raise should match the justices’ reaction to the government’s mismatched administrative interpretations of the single statute at issue here, Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act.   

    First things first, this statute itself in no way calls for Mellouli’s deportation. It specifically calls for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” But the record of Mellouli’s conviction does not disclose anything about the drug he had socked away.  Kansas law bans plenty of substances -- a list far broader than those defined in section 802 of title 21. For example, salvia is on the Kansas list, a type of mint plant, which Miley Cyrus (another adventurous dresser) recently made news smoking.

    The Board of Immigration Appeals (BIA) is the administrative agency responsible for interpretation of this and other immigration statutes. Courts typically give administrative agencies a fair amount of leeway to interpret statutes. This principle is known as Chevron deference.  But this deference is not free for the taking. Federal courts don’t give it when the agency interpretation bears little relation to the statute, and they throw deference completely to the side when the agency starts offering inconsistent interpretations of a single statute. The government is asking for Chevron deference in this case, but suffers from both of these problems.

    The plain language of the federal statute requires the state paraphernalia conviction be directly and necessarily tied to a controlled substance under federal law. Keeping paraphernalia used with salvia and other Kansas-forbidden drugs may be criminal in Kansas, but these drugs are not on the federal list of controlled substances. There is no necessary federal tie Mellouli’s Kansas crime, and no basis for interpreting the statute otherwise. 

  • January 8, 2015
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, Indiana University Bloomington.

    * This piece originally appeared on The Huffington Post.

    The Supreme Court has been reluctant to jump into the question of same-sex marriage, preferring to let the issue percolate through state-by-state litigation in the lower federal courts.  But the time has come for the justices to come out of hiding.  The denial of marriage equality is a national problem, not a state-level problem, and it requires a national resolution that only our nation’s constitutional court can provide.

    At the moment, 35 states allow marriage equality, while 15 forbid it.  The anti-equality states not only refuse to allow same-sex marriages to be licensed and celebrated; 14 of them also refuse to recognize marriages from sister states where such unions are perfectly legal.  Petitions from cases in four of those states – Kentucky, Michigan, Ohio, and Tennessee – will be considered by the justices at their next private conference this coming Friday.

    One reason marriage equality is a national issue is that our current patchwork of marriage laws imposes unreasonable, indeed absurd, burdens on same-sex couples’ security in their marriages and their freedom to move from state to state.  A married gay couple from a pro-equality state can relocate for job, education or family reasons to an anti-equality state – as long as they’re willing to give up their marriage, and perhaps even their property and parental rights.  A rational legal regime cannot tolerate this state of affairs.

    In a 2012 article in the Michigan Law Review, I first proposed that the Constitution provides not only a right to get married, but a right to remain married.  Multiple federal court decisionsincluding one from the 10th Circuit U.S. Court of Appealsinvolving Utah’s marriage laws, have since endorsed this principle.  There is also an argument to be made that denial of interstate marriage recognition offends the Constitution's Full Faith and Credit Clause.

  • January 6, 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.  

    January 11 is the 13th anniversary of the opening of the detention center at Guantanamo Bay, Cuba. Nearly six years have passed since President Obama announced on his second day in office that he would shutter the detention center within one year. 127 detainees still remain at Guantanamo, 59 have been cleared for release, many for years.  Over these 13 years, Guantanamo has been a black stain on America, a stain that Obama himself has acknowledged. Because of Guantanamo, people around the world have come to question the United States’ position as world leader in human rights and the rule of law.

    Several times during his administration, Obama has said that he wanted to close Guantanamo.  Although he has blamed the Republicans for placing restrictions on his ability to release the men, he has repeatedly signed legislation passed by Congress restricting release of the detainees. He cannot blame the Republicans. He has two more years to be true to his word and close the detention center. However, perhaps something is changing.  Since Election Day, he has released 22 people.  It took him three and one-half years (from May 2011 to November 2014) for him to release another 22 detainees. 

    However, it is easier said than done. Congress has continually prohibited detainees from being brought to the U.S. Until Obama can place the men who will be prosecuted, as well as those who are considered “forever” detainees, in prisons outside Guantanamo he cannot close the prison. If he does not close the prison, it is possible that the next president will be equally stymied, and that Guantanamo will only close when the last detainee has died.

  • December 31, 2014
    Guest Post

    by Leslie Bailey, Staff Attorney, and Paul Bland, Executive Director, Public Justice. This post first appeared at the Public Justice Blog.

    USA Today has run a startling and powerful editorial that shines a bright light on a dark practice. All too often, corporations that have manufactured defective and sometimes deadly products, or are engaged in other severely illegal behavior, ask courts to cover up the wrongdoing. Through the excessive use of secrecy orders, far too many courts have sealed evidence and allowed corporations to conceal facts that – if they had become publicly known – would have stopped dangerous and illegal behavior.

    In particular, USA Today focuses on the case of Rich Barber, whom we had the privilege of successfully representing in a challenge to abusive court secrecy. Rich’s son was killed because a Remington rifle had fired without the trigger being pulled due to a design defect that Remington knew about and concealed for decades. USA Today argues that a pattern developed over a number of cases: a particular plaintiff would discover key internal documents of the gun manufacturer relating to the defect and its knowledge, and Remington would settle the cases and demand (and get) broad secrecy orders sealing up the evidence. As a result, the public didn’t learn of the defect for many years, and many more people died. 

    USA Today notes that Rich Barber’s work, and that of Public Justice, helped break down this wall of secrecy. Rich championed important legislation in Montana that now restricts courts from sealing records in cases involving public safety.

    I urge you to read USA Today’s editorial in its entirety, and to share it with others. Its editorial board put the entire problem in perspective:

    Clever use of court secrecy – confidential settlements and ‘protective orders’ to seal documents – helped keep evidence of the rifle’s potential dangers under wraps. Had court documents been public, injuries might have been prevented and lives saved. 

  • December 19, 2014
    Guest Post

    by Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School. This piece first appeared at The Incidental Economist.

    Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available.

    Writing the counterpoint allowed me to pull together a punchy, non-technical, and thorough explanation for why I think the challengers should lose this case. It also gave me a chance to emphasize the strongest argument in the government’s favor—a point that’s at risk of getting lost in the fog of statutory analysis.

    To prevail, it’s not enough for the King challengers to show that it’s possible to read the ACA to eliminate tax credits from states that refused to set up their own exchanges. They must also demonstrate that the ACA does so unambiguously—and that the IRS’s contrary interpretation is therefore unreasonable. Under Chevron, if the ACA could be read in a couple of different ways, the courts owe deference to the IRS’s authoritative decision about how best to read it.

    The challengers must therefore believe that the judges and commentators who read the statute differently than they do—including yours truly—are all behaving unreasonably. That’s an extraordinary claim, one that, as Adrian Vermeule has noted, “verges on self-refutation.” As I explain in my counterpoint:

    [E]ven if you think that Adler and Cannon’s [interpretation] is plausible, maybe even attractive, the contrary interpretation offered by the government is at least reasonable. That brings me to the aspect of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they so much as acknowledge the possibility that maybe, just maybe, they’re wrong.

    That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose. But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation. To be clear, Adler and Cannon deserve immense credit for their lawyerly ingenuity: they’ve constructed a facially plausible argument in support of an exceedingly strange interpretation of the ACA. But the courts would violate their obligation of fidelity in statutory construction if they mistook that ingenuity for genuine obeisance to congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.