• 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an immigration policy the United States would maintain and even extend to other national origin groups until it finally repealed such exclusions in the mid-1900’s. 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 9, 2015

    By Jim Thompson

    At Hamilton and Griffin on Rights, Ruben Garcia, faculty advisor to the ACS Student Chapter at the University of Nevada-Las Vegas School of Law, discusses the potency of social science evidence in Fisher v. University of Texas at Austin.

    Following sustained criticism, the FBI will overhaul its system for counting deaths caused by police officers and will begin releasing information about deadly encounters involving the use of Tasers and other force, write Tom McCarthy, Jon Swaine and Oliver Laughland in The Guardian.

    On Tuesday, the Supreme Court ruled unanimously that Maryland resident Steve Shapiro may proceed with his lawsuit “alleging that the state’s congressional redistricting plan was unconstitutionally gerrymandered,” reports The Associated Press.

    Pedro Burgos recaps key talking points from The Marshall Project’s recent discussion on the death penalty and criminal justice reporting, including insightful commentary from Liliana Segura about her experience covering the case of Richard Glossip, an Oklahoma inmate who has faced execution multiple times despite strong evidence of his innocence.

    A Delaware police officer who was caught on camera senselessly kicking a black suspect in the face and breaking his jaw was acquitted of assault charges on Tuesday, says Stephen A. Crockett, Jr. at The Root

  • 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 8, 2015

    By Jim Thompson

    In The Washington Post, Fred Barbash explains how the Illinois Rifle Association spurred the law in Highland Park, Ill., that bans assault weapons and large-capacity magazines.

    Ahead of Wednesday’s oral arguments in Fisher v. University of Texas at Austin, ACS Board of Directors member Elise Boddie pens an Op-Ed in The New York Times urging the Supreme Court to celebrate diversity in the college admissions process, citing a study by former ACS Board member Goodwin Liu that found there is “no logical basis to infer that white applicants would stand a much better chance of admission in the absence of affirmative action.”

    Patrick Healy and Michael Barbaro at The New York Times write that Donald Trump’s proposal to bar Muslim individuals from immigrating to the United States is unconstitutional and antithetical to American values. Regardless of the election’s outcome, Trump’s popularity has ushered “radical eliminationist ideas fully into the mainstream of American political life,” laments Heather Digby Parton at Salon.

    In The New York Times, Michelle E. Mann blasts Republican congressional representatives for using their positions of power to dissuade climate scientists from pursuing  research that inconveniences climate change deniers.

  • December 7, 2015

    by Jim Thompson

    On Monday, the Supreme Court refused to take up a Second Amendment challenge to a local ordinance that bans semiautomatic assault weapons and large-capacity magazines in Highland Park, Ill., reports Adam Liptak at The New York Times.

    The Department of Justice will conduct a thorough civil rights investigation of the Chicago Police Department, writes Timothy M. Phelps in the Chicago Tribune.

    Ahead of Tuesday’s oral arguments in Evenwel v. Abbott, Ari Berman at The Nation discusses why electoral districts should continue to be drawn based on total population.

    Nina Totenberg at NPR explains why the number of death sentences handed down in the United States has plummeted since the mid-1990s.