by Geoffrey Stone, ACS Board of Advisors Member and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School
My new book, Sex and the Constitution, will officially be released on March 21, but is now available for pre-order on Amazon at a discount. I have worked on this book, on-and-off, for roughly a decade. My goal was to explore the history of sex, religion, law and constitutional law from the ancient world to the 21st century. It was probably a crazy goal, which is no doubt at least partly why it took so long to complete. Now that it is complete, though, I have to admit that I am quite pleased with the result, and the early reviews have been glowing, including from such folks as Lawrence Tribe, Linda Greenhouse, Cass Sunstein, Erwin Chemerinsky, David Cole and George Chauncey.
I have been invited to write this ACS BookTalk in order to inform readers about the work and, hopefully, to entice your curiosity. Rather than writing something “new” for this purpose, I decided that the best way to accomplish the goal is simply to set forth below the opening paragraphs of the Prologue. Hopefully, that will give you a sense of what this work is all about.
We are in the midst of a constitutional revolution. It is a revolution that tests the most fundamental values of the American people and that has shaken constitutional law to its roots. It has bitterly divided citizens, politicians and judges. It is a battle that has dominated politics, inflamed religious passions and challenged Americans to rethink and reexamine their positions on issues they once thought settled. It is a story that has never before been told in its full sweep. And, best of all, it is about sex.
by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department
Much has been written in this forum of police misconduct, abuse, discrimination and violence (and I have certainly made contributions here). But much of what I have seen of the police and their resistance to a role in the enforcement of federal immigration laws is heartening and cause for a glimmer of optimism in what is otherwise, with the “shackles off” of Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) agents, descending into chaos, fear, danger and peril for residents of immigrant communities across the United States. Police chiefs and sheriffs from sixty-three agencies who are members of the Law Enforcement Immigration Task Force recently sent a letter to the U.S. Senate in which they disavow support for the involvement of local and county police and sheriff’s agencies in the enforcement of civil immigration laws. In the letter, the chiefs and sheriffs emphasize their role in “preserving the safety of our communities and upholding the rule of law” and that their participation in the enforcement of non-criminal immigration laws would “harm locally based, community-oriented policing.” And so it would.
The backlash against the deputizing of local law enforcement under the nefarious ICE 287(g) program continues to position ICE’s draconian detention and removal policy against the local law enforcement mandate to ensure the safety of all community residents, regardless of their immigration status. According to the New York Times, Mayor Bill di Blasio refuses to turn the NYPD into a deportation force because residents will become fearful of the police and be reluctant to report crimes or to cooperate in criminal investigations, to the detriment of community safety. “If so many of our fellow New Yorkers who are undocumented feared to communicate with the local authorities because they thought they might be deported, we couldn’t run our city,” he said.
This week, the U.S. Supreme Court issued its decision in Bethune-Hill v. Virginia State Board of Elections. The Supreme Court told the lower court to go back and take a second look at 11 state house districts to determine whether they constitute racial gerrymanders. But it is the reason why the Court required the do-over that is so significant.
Bethune-Hill arrived at the Supreme Court after a three-judge federal district court held that the Virginia legislature’s plain use of racial quotas to unnecessarily pack black voters into state legislative districts did not violate the 14th Amendment’s ban on racial gerrymandering.
In drawing the districts, the Virginia Legislature required all 11 districts to meet a quota of at least 55 percent black voting-age population (BVAP). These sorts of targets tend to be used to pack minority voters into smaller numbers of districts, reducing the influence of the minority population statewide. According to the district court, this race-based intent did not matter, because the districts could, after the fact, be explained by other factors. But the three-judge court’s ruling was at odds with the Supreme Court’s 2015 decision in Alabama Legislative Black Caucus v Alabama, which held that a legislature’s unsupported insistence on rigid and mechanical racial targets for state legislative districts provides strong evidence of an unconstitutional racial gerrymander.
Virginia had argued that voters must show an “actual conflict” between race and the more traditional criteria that states use for redistricting, like preserving municipal boundaries and keeping districts compact. As long as a state shows that it could have made the same districts without using race, a racial gerrymandering claim could not go forward. In other words, legislatures could act with a racially discriminatory intent as long as the districts were drawn neatly. Moreover, as the Supreme Court recognized, the traditional criteria relied upon are so malleable that this test would have insulated nearly every racial gerrymander so long as the legislature could invent an explanation for its district lines after the fact.
*This piece originally appeared on StateAG.org's Tierney Blog.
by James Tierney, Former Maine Attorney General and Lecturer in Law at Columbia Law School
The Maryland Legislature has finally gotten around to giving that state's outstanding AG - Brian Frosh - the authority that is enjoyed by almost every other AG, e.g. the authority to protect and defend the public interest by exercising his or her own best legal judgement without the approval of the Governor or the Legislature. This initiative finally consigns to the historical dustbin a wrongly decided 1984 decision by the Maryland Supreme Court.
As the Rhode Island Supreme Court said in 2008, "the holder of that high office (state attorney general), as distinguished from the usual advocate, has a special and enduring duty to seek justice." State of Rhode Island v. Lead Industries Association Inc., et al., 951 A.2d 428 (R.I. 2008).
Residents of Maryland can now be assured that their attorney general will now work to "seek justice" for them. And other attorneys general around the country can now fully welcome Maryland into their midst.
When a noncitizen arriving at the border is charged with removability, Section 212(d)(5) of the Immigration and Nationality Act grants immigration officials discretion to release her on parole pending the outcome of removal proceedings. For decades, officials considered factors such as the individual’s age, health, family ties in the United States and the hardship that detention would cause, in determining whether detention was warranted. Last year, DHS reported detaining only 352,882 of the 805,071 noncitizens placed in removal proceedings last year.
Under the new guidelines, discretionary grants of parole are prohibited unless the Deputy Director of ICE or the Deputy Commissioner of CBP provides written authorization for the individual’s release; individuals who demonstrate a credible fear of persecution for asylum purposes remain eligible for discretionary parole without such written authorization. The guidelines explicitly preclude grants of parole on a categorical basis, for example, to all children, or pregnant women, or individuals over the age of 80. Moreover, they appear to preclude consideration of alternatives to detention, such as electronic monitoring.
Last year, DHS apprehended 690,637 noncitizens at or between ports of entry. This figure includes 415,816 individuals, including 59,757 unaccompanied children and 77,857 family units, apprehended by U.S. Border Patrol, plus an additional 274,821 individuals denied entry by U.S. Customs and Border Protection’s Office of Field Operations. Some of these individuals arriving through the southern border may be repatriated immediately to Mexico without a hearing, assuming the Mexican government agrees to accept them. Some will be able to establish a credible fear of persecution and thus become eligible for discretionary parole. Under the new guidelines, however, virtually all other noncitizens apprehended will be detained.