ACSBlog

  • April 21, 2016
    Guest Post

    by Harry Litman, former United States Attorney for the Western District of Pennsylvania, lawyer, and visiting professor at the School of Global Policy and Strategy at UC San Diego.

    The case for DAPA, the contested immigration program that provides for not deporting certain aliens who are parents of U.S. citizens or of lawful permanent residents, comes down to two undisputed numbers: 11 million and 400,000.

    The first is the estimated number of illegal aliens in the United States. The second is the approximate number of persons who can conceivably be deported every year given the resources Congress allocates to the detention and removal of undocumented aliens. 

    Given those hard numbers, it is no secret, and Congress plainly intends when it allocates funds, that DHS must exercise broad and deep discretion in determining which aliens are eligible for deportation in the first place. It is therefore no surprise that the oral argument in the case, which took place on Monday, featured extensive back-and-forth about the role of discretion in immigration law enforcement.

    In fact, the need for such broad choices is a pervasive feature of federal law enforcement in general, not just in the immigration area. With the resources that they are allocated, federal authorities can prosecute only a very small fraction of the people who break federal. So they make choices – not just case-by-case by categories, set out in advance of the prosecution decision.

  • April 21, 2016
    Guest Post

    by Joseph M. Sellers and Miriam R. Nemeth. Mr. Sellers is the head of the Civil Rights and Employment practice group at Cohen Milstein Sellers & Toll, PLLC. Ms. Nemeth is an associate in that practice group. In May, Cohen Milstein will be opening an office in Raleigh, North Carolina that will be headed by the Honorable Martha Geer, who is leaving the North Carolina Court of Appeals to take on that role.

    North Carolina has justifiably been pilloried in recent weeks for enacting legislation that requires public school students and state employees to use the bathrooms reserved for their biological sex, regardless of the gender with which they identify. In many ways, this legislation resurrects memories of racially segregated restrooms that were mandated by law until the middle of the last century. Motivated by the same kind of fear and unjustified stereotypes as before, the segregation this time is directed at transgender people.

    The bill’s requirement that state employees and public school students use restrooms designated for their sex at birth, regardless of the gender with which they identify, is bad enough. But the bill also limits protections against sex discrimination to one’s “biological sex,” which further reinforces state-sponsored hostility to transgender people. Although such a limitation may not impose the same daily inconvenience or humiliation as the restroom restriction, it wholly exempts transgender people from the state’s legal protection. Like the bigotry of racism, this officially sanctioned discrimination rests on unfounded stereotypes and fears about transgender people. Nowhere else do we require employees and students who wish to use public restrooms to announce what their genitalia look like.

    Even more troubling and little noticed, however, this legislation also gutted the state’s civil rights laws. Enacted as the Public Facilities Privacy and Security Act, a wholesome title that masks its pernicious effect, this legislation withdrew a private right for anyone (not just transgender people) to challenge in the state’s courts any form of discrimination in employment and public accommodations. Part III specifically provides that the state’s existing statutory protections—including the language added by House Bill 2—do not “create or support a statutory or common law private right of action and no persons may bring any civil action based upon the [discrimination prohibitions] expressed therein.” House Bill 2, Sess. Law 2016-3, Pt III. In that one clause, the legislation abolished North Carolina’s common law cause of action for wrongful discharge based on discrimination, which had been recognized by the courts since 1989.

  • April 21, 2016

    by Jim Thompson

    Two state regulators and one Flint employee will face criminal charges in connection with the Flint water crisis, reports Inae Oh at Mother Jones.

    The mother of Pierre Loury, a 16-year-old black teenager who was fatally shot by Chicago police last week, has filed a wrongful death lawsuit against the city and two police offices, writes Breanna Edwards at The Root.

    The Supreme Court on Wednesday unanimously affirmed an Arizona redistricting plan that includes an 8.8 percent population deviation in order to comply with nonretrogression under the Voting Rights Act, says Steven D. Schwinn at Constitutional Law Prof Blog.    

  • April 20, 2016
    Guest Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    *This post first appeared on HuffPost Politics.

    This morning, the Senate Judiciary Committee held a hearing on judicial nominations for just the second time this year.

    At this point, I’m not worried about Senate Republicans doing their job—I’m worried that they’ve forgotten what doing their job even looks like.

    Senate Republicans are not only politicizing and undermining the Supreme Court, with their refusal to even consider Chief Judge Garland’s nomination, but they are doing the same thing to lower courts as well. They are likely to damage our entire judiciary—all for political gain, so they can leave more vacancies open for President Trump to fill.

    Since January 2015, Senate Republicans have confirmed only 17 judicial nominees.

    In comparison, from January 2007 to April 2008, Senate Democrats confirmed 45 of President Bush’s judicial nominees.

    The difference is even starker when you consider the circuit courts—the level of our federal courts just below the Supreme Court.

    In fact, with respect to circuit court confirmations, Chairman Grassley has work to do if he doesn’t want the worst record in almost 120 years.

    So far, Chairman Grassley has held hearings on only two circuit court nominees—the last one was ten months ago—and he has not indicated whether he will allow any of the seven pending circuit court nominees to move forward, taking the obstructionist mantra of “No Hearing No Vote” to a whole new level.

  • April 20, 2016

    by Jim Thompson

    While everyone has been focusing on the Supreme Court vacancy, almost 100 lower court vacancies have languished without nominations, hearings or votes, writes Colorado Lawyer Chapter Vice President Peg Perl in HuffPost Denver.

    Kenneth Jost at Jost on Justice examines the effects of an eight-person bench on consequential Supreme Court cases this term.

    ACS speaker and ACSblog contributor Shoba Sivaprasad Wadhia fact checks statements made during oral argument in United States v. Texas on the ImmigrationProf Blog.