Guest Post

  • December 9, 2015
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University School of Law. Professor Gulasekaram teaches constitutional law and immigration law, and is co-author of The New Immigration Federalism (Cambridge Press, 2015).

    Every semester in immigration law class, we begin by reading the Supreme Court cases from the late 1800’s that established the scope of federal immigration power. Those cases – dubbed the Chinese Exclusion Cases – upheld the constitutionality of federal laws that banned immigration of Chinese and made resident Chinese deportable unless they could show a certificate of residence or provide evidence of their residency, with the testimony of white witnesses. In those cases, the Court chose to defer to the judgment of the political branches and established the plenary federal power to exclude non-citizens.  Such power shielded Congress’ outright racial and national-origin exclusions, and discriminatory deportation standards from judicial review. It was an immigration policy the United States would maintain and even extend to other national origin groups until it finally repealed such exclusions in the mid-1900’s. 

    After reading those foundational cases, I usually pose a hypothetical to my class asking whether a statute passed by present-day Congress that barred immigration from predominantly Muslim countries and which called for the prioritized deportation of immigrants from predominantly Muslim countries would be constitutional. In essence, the hypothetical is intended to query how we should understand the continued vitality of the Chinese Exclusion Cases and the principle of plenary federal power over immigration they enshrined. Almost every time we engage in the exercise, at least some students remark that such a statute could never be enacted today, based on how we’ve evolved as a pluralistic society.

    Incredibly, as the past few weeks have shown, such blatant discrimination may not be just a theoretical exploration after all. Rather than rely on a fictional creation, I could have just quoted from the various proposals from state governors, presidential candidates, and members of Congress, first to ban all Syrian refugees, then to ban Syrian refugees who are Muslim, and more recently, by Donald Trump, to exclude all Muslims from entering the country.

    There is no doubt that such statements from prominent officials and presidential candidates are corrosive. They affect the way we view those in our society who share that religious or national background, and provide fodder for those who mistakenly believe that the fight against terrorism and extremism is a war against all 1.6 billion Muslims (approximately 1/4th of the world’s population), many of whom are fleeing the same violence these proposals misguidedly intend to address.

    But beyond the wisdom and desirability of these proposals, would they be constitutional? As I have written elsewhere, and as others contributors have argued on this blog, state-level opposition to Syrian refugees is not legally viable.

    State governors cannot dictate our refugee policy, and are barred from discriminating against certain noncitizens on the basis of national origin or religion.

    But what about proposals at the federal level that ban the admission of any Muslims or those applying from predominantly Muslim countries? For those unfamiliar with immigration law, these would seem to be easily resolved as well. One would think that straightforward application of constitutional provisions like the equal protection guarantee, the due process clause, and the First Amendment would quickly diffuse any such attempts. But, the reality is that the Court has never used these constitutional principles to limit federal admission and exclusion policy.  As it turns out, the Chinese Exclusion Cases have never been overruled and, ostensibly, remain good law.

  • December 8, 2015
    Guest Post

    by Rachel Easter, Legal Fellow, National Women’s Law Center

    Over the last five years, politicians have enacted an onslaught of abortion restrictions—more than 280 throughout the country. Politicians designed these laws to make it more difficult— often impossible—for women to access abortion, jeopardizing a woman’s constitutional right to decide whether to have an abortion. The state of Texas has been at the center of anti-abortion efforts with HB 2, a law passed in 2013 that has already closed more than half of the clinics in the state, leaving some Texas women hundreds of miles from the closest clinic. This term, the Supreme Court will hear a challenge to parts of the Texas law in Whole Woman’s Health v. Cole, the Court’s first major abortion case in nearly a decade.

    With this case, the Court has the opportunity to reaffirm that women have a fundamental right to abortion and make clear that right is rooted in both liberty and equality. The right to abortion is part of a line of cases recognizing that matters “involving the most intimate and personal choices a person may make in a lifetime” are “central to personal dignity and autonomy.” That principle underlies constitutional protection for parental rights, the right to access contraception and abortion, and the right to marriage. These cases have traditionally been understood to stem from the Due Process Clause of the 14th Amendment, but the constitutional principles of liberty and equality are fundamentally connected. The Court’s decision in Planned Parenthood v. Casey recognizes the interrelated nature of Due Process and Equal Protection. In that case, the important truth that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” played a key role in the Court’s decision to reaffirm women’s constitutionally protected right to abortion.

    Since that case, the connection between liberty and equality has become more explicit. In Lawrence v. Texas, the Court struck down laws criminalizing certain sexual acts between two people of the same sex because the laws both perpetuated inequality and infringed on the liberty to control certain personal relationships. And in Obergefell v. Hodges the Court held that bans on same-sex marriage subordinate same-sex couples by denying them the rights and privileges of marriage, a denial that both burdens liberty interests and “abridge[s] central precepts of equality.” In that case, the Court made clear that Due Process and Equal Protection are “instructive as to the meaning and reach of the other.…[I]nterrelation of the two principles furthers our understanding of what freedom is and must become.” Looking at HB 2 through this lens, it is clear that the law unconstitutionally burdens women’s liberty and equality interests.

  • December 7, 2015
    Guest Post

    by David Steingraber, Senior Policy Adviser at the National Criminal Justice Association, former Executive Director of the Wisconsin Office of Justice Assistance, former Administrator of the Wisconsin Department of Justice, Division of Law Enforcement Services, and former Chief of the Menomonee Falls, Wis. and Middleton, Wis. Police Departments   

    The “perfect storm” has come to mean the convergence of two or more forces to create a larger force which is greater than the sum of its parts. Such is the case with criminal justice reform. The politics of criminal justice reform has always been an impediment to true reform. The forces of law and order have always collided with well-meaning “do-gooders” to cancel any real momentum for reform. Dramatic headline grabbing crimes and a statistical increase in crime rates have prompted knee-jerk get tough on crime responses at both local precincts and state houses across the country.

    What has changed today is that our criminal justice system has come under scrutiny from both the left and the right. Not only have the deplorable conditions in many of our prisons with overcrowding being a major contributing factor been cause for concern, but concern has also been prompted by the extremely high cost of maintaining prisons to say nothing of the cost of new prison construction anticipated to house a growing number of inmates.

    Progressive and social reformers continue to rail against the ineffectiveness and inhumanity of our over-reliance on incarceration. Conservatives have awakened to the impact of the high cost of the prison system. This impact is particularly harsh at the state level which is the primary locus of our criminal justice system. There is also concern at the federal level where the federal justice system has intervened to attempt to quash the national drug abuse epidemic.

    For the first time in memory, these two forces are willing to sit down and discuss a pathway to criminal justice reform that is less reliant on what is now seen as a costly and often ineffective response to crime. The reward for both sides is compelling. Each side sees the clear benefit of spending less on prisons and achieving a more effective response to criminal behavior.

  • December 4, 2015
    Guest Post

    by Susan-Mary GrantProfessor of American History and Deputy Head of School, Newcastle University

    *This post originally appeard on the blog of Hamilton-Griffin on Rights

    owh

    Spoiler alert, as they say these days. Or, more accurately, I must start with a disclaimer: this biography of Oliver Wendell Holmes, Jr. was not written with legal scholars as its intended audience. In the course of writing, I certainly had the voluminous legal scholarship on Holmes very much on my mind, but my interest in Holmes derives from a very different direction. This biography, part of a series designed, in part, to “show the impact everyday people can have on the course of history,” was actually written to try to assess what impact the course of history might have on an everyday individual.

    One might well argue, of course, that Oliver Wendell Holmes, Jr. was anything but an everyday individual. A scion of New England’s intellectual elite, and a Civil War veteran—Holmes fought with the Twentieth Massachusetts—his post-war career in the law took him all the way to the Supreme Court in 1902, where he remained for the next three decades. He was over ninety when he finally retired, and his ninetieth birthday in 1931 was marked by a coast-to-coast radio broadcast, a technological marvel unimaginable in 1841, the year of Holmes’ birth, when the nation’s first telegraph message was still three years away. In further honor of his birthday, a valley in the Central Brooks Range in Alaska was named for him by explorer Robert Marshall. Holmes remains, to this day, perhaps the best-known justice to have served on the Supreme Court. Portrayed on stage, film and fiction, and on a stamp, no fewer than three substantial biographies and countless shorter studies have been produced that explore the life and legacy of a man born into a world where slavery was still legal, who was driven by abolitionist sentiment to fight for the Union in 1861, but who, when he finally ascended to the Supreme Court, did little to protect those rights that he had, four decades before, struggled to secure.

  • December 4, 2015
    Guest Post

    by Gabriel J. Chin, Martin Luther King Jr. Professor of Law, University of California, Davis School of Law and co-editor of The Immigration and Nationality Act of 1965: Legislating a New America (Cambridge University Press, 2015).

    November 20, 2015 marked the anniversary of President Obama’s announcement of the Deferred Action for Parents of Americans (DAPA) program, designed to grant temporary status and work authorization to unauthorized migrant parents of children who were U.S. citizens or lawful permanent residents (LPRs). Texas and other opponents obtained an injunction against implementation of DAPA; the injunction was recently upheld by a divided panel of the Fifth Circuit. Texas asked the Supreme Court for a 30 day extension to respond to the Justice Department’s certiorari petition, which likely would have pushed any decision into the Court’s next term; this week, the Court gave them eight, making a decision possible before June 2016.

    The Court was right to move the case along, because delay is a signature problem in this area. Indeed, avoiding delay in the face of congressional inaction is a primary justification for the president’s unilateral immigration actions, which includes DACA, Deferred Action for Childhood Arrivals, which started in 2012. Few Americans believe that Congress either has the desire or the willingness to mandate and fund the removal of the current population of unauthorized migrants. To the contrary, in 2006 and 2013, the Senate passed bills providing opportunities for many undocumented people to regularize their status—someday, probably, it will happen.