Other courts

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Texas challenge to DAPA

    In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities.  As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.

    The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states.  Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide.  Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers.  Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place.  To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.

  • June 23, 2015
    Video Interview

    by Nanya Springer

    As Stephen Bright provided closing remarks at the 2015 ACS National Convention, he extoled the virtue of representing unpopular clients ‒ particularly criminal defendants, who are usually poor and often people of color.  He listed the names of inmates who have been wrongfully convicted and recently released from prison, all unwitting members of a far-too-large society of American exonerees:  Willie Manning in Mississippi, Anthony Ray Hinton in Alabama, Alfred Brown in Texas, and Glenn Ford in Louisiana.  But Bright also delighted the crowd by introducing a special guest: exoneree and recent law school graduate Jarrett Adams.

    Adams served almost 10 years of a 28-year prison sentence for a crime that he did not commit.  After being exonerated with the help of the Wisconsin Innocence Project, he obtained a degree in criminal justice and then attended law school at Loyola University Chicago.  He has worked at the Federal Defender’s Office in Chicago and at the public interest law firm Loevy & Loevy, and soon he will begin a dual fellowship with the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Seventh Circuit ‒ the very court that overturned his conviction and set him free.

    At the convention, Adams sat down with ACS to explain why it’s so important for law students to develop professional networks.  He said, “There are only so many big firms, and if you don’t . . . get a 4.0 or know someone . . . you don’t have the opportunity to summer with them and to get into the door.  ACS offers you the opportunity to network with the big law firms at events like this.”  He added, “You never know when you’re going to be in a networking event and meet someone that’s going to help you become someone.”

    Arguably, Adams – who hopes to practice civil rights law and continue leading the nonprofit organization he co-founded, Life After Justice – is already “someone.”  But, as he would probably agree, there is always room for growth and advancement.

    Adams’ entire interview can be viewed below.

  • June 3, 2015
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law

    *This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.

    Griswold v. Connecticut is justly celebrated for discerning the constitutional right to privacy, and thus constitutional protection for reproductive freedom.  It not only protected access to contraceptives, but also provided the foundation for the later cases constitutionally protecting access to abortion.  Moreover, Griswold helped instill constitutional respect for the broader concerns of “marriage, procreation, and family relationships,” and ultimately for the even broader concern of “personal dignity and autonomy.”

    However, where the privacy and personal autonomy of LGBT people are concerned, the legacy of Griswold is more nuanced.  Doctrinal developments following Griswold constrained gay rights in some respects, and in some respects fortified them.  And the way in which the Supreme Court has been treating LGBT rights recently may presage salutary changes to come.

    The most negative aspect of the Griswold legacy for LGBT people is that it did nothing to forestall the disaster of Bowers v. Hardwick.  This was the 1986 case in which the Supreme Court held that Georgia’s anti-sodomy law did not protect sexual relations between two men (nor presumably between two women).  When Bowers was decided, Griswold was already 21 years old, and Roe v. Wade had already passed its thirteenth anniversary.  Cases applying the right to privacy were not in short supply, but the Court majority could not bring itself to allow lesbians and gay men to share in the newly discerned freedoms.  There was no principled reason for Bowers to come out differently from the contraception or abortion cases.  Bowers seemed to create a “special case,” perhaps founded on homophobia, excluding lesbian and gay rights from the zone of privacy that protected others.

  • May 7, 2015

    by Devon Ombres

    Today, a panel of the U.S. Court of Appeals for the Second Circuit issued its unanimous opinion in American Civil Liberties Union v. Clapper, giving privacy advocates a victory they have long been seeking in holding that Section 215 of the PATRIOT Act does not authorize the bulk collection of telephone metadata.  Because the Second Circuit found that bulk telephone metadata collection is not permitted by the statute, the court did not reach the constitutional question of whether it would comport with the Fourth Amendment.  Additionally, despite vacating and remanding the lower court’s judgment, the Second Circuit did not enjoin the government from continuing the collection of metadata under Section 215, reasoning that the statute is set to expire on June 1, 2015 and there is significant legislative activity on the horizon that could impact the legal issues in play.

    As an initial matter, Judge Gerald Lynch’s opinion held that the ACLU and its affiliates were not precluded from bringing an action seeking an injunction against the government’s collection program.  Although the government argued that no private cause of action was permitted, the court held that the government’s reliance on “bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the [Administrative Procedure Act’s] authorization of challenges to government action” was not sufficient to overcome the strong presumption against the preclusion of judicial review.

    As to the program’s validity under Section 215, the court reviewed whether the statute authorized the creation of a “historical repository of information” where the “sheer volume of information sought is staggering.”  The court did not accept the government’s argument that data collection under Section 215 is analogous to the permissiveness provided to prosecution requests for grand jury subpoenas, which cannot be denied unless a court determines “that there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject matter of the investigation.”  The court distinguished those subpoenas as bound by the facts of a particular investigation and a finite timeframe, while the Section 215 metadata collection program had no limitations on subject matter, individuals, or time, and there was no requirement of relevance to any particular set of facts.

  • April 1, 2015
    Guest Post

    by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

    This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

    Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.