Saturday, May 18, 2019

Court's Conservatives 'Unmaking' Law Again

      The Roberts Court's refortified conservative majority stirred fears for the future of abortion rights last week [May 13] by flexing their muscles to discard in the name of federalism a 40-year-old precedent that had gone all but unnoticed ever since. Speaking for the four liberal justices in dissent, Justice Stephen G. Breyer rejected the majority's rationales for scrapping the old case and, pointing in particular to the most reaffirmation of Roe v. Wade, wondered in print about "which cases the Court will overrule next."
      The fate of Roe v. Wade apparently now turns on the predilections of Chief Justice John Roberts and the Court's newest justice, Brett Kavanaugh. The future of Roe v. Wade was the most important issue in Kavanaugh's confirmation hearing last year until the late-arising dispute over a 30-year-old accusation of sexual misconduct.
      Kavanaugh secured the influential vote of Maine's sometime maverick Republican Susan Collins only after convincing Collins that he was not dead set on overruling Roe if confirmed. Roberts too was questioned closely about the case in his confirmation hearing 14 years ago and allayed some fears among abortion-rights advocates by stressing the importance of precedent and calling it a "jolt to the system" to overrule a prior decision.
      Outside the Court, anti-abortion forces are working hard to provide a test case that the conservative bloc could use to flatly overrule Roe, notably in the new Alabama law that makes women and doctors alike criminally liable for abortions except in extremely rare circumstances. The new laws enacted in ruby-red Republican states validate their political strategy despite the still prevailing majority in the United States opposed to completely outlawing abortion.
      The Court's reversal of an old precedent in the new decision, Franchise Tax Board of California v. Hyatt, refocused attention on the Roberts Court's record on reversing prior rulings. Statistics compiled for the Supreme Court Database at Washington University's School of Law in St. Louis show that the Roberts Court actually has been scrapping old cases at a slower pace than any of the previous Courts under three chief justices: Earl Warren, Warren E. Burger, and William H. Rehnquist.
      A close examination of the overruled cases behind the statistics, however, shows that the conservative justices' policy slips are showing beneath their robes. Among 22 cases listed either in my Supreme Court Yearbook, the Supreme Court database, or both, nearly half divide neatly between five Republican-appointed conservatives and four liberal justices, currently the four Democratic appointees and earlier including the moderate Republican appointees Anthony Kennedy and John Paul Stevens.
      Twice, the Roberts Court reversed prior decisions to throw out provisions of campaign finance laws favored by Democrats and election reformers and opposed by Republicans and conservative groups. In both of those cases, the conservative majority acted more like legislators than judges by discounting the fears of corruption that Congress had cited in enacting the campaign spending limits.
      Among other 5-4 conservative reversals, the Roberts Court narrowed the scope of federal antitrust law by rejecting a century-old precedent and just last year threw out a 40-year-old precedent to limit the financial base for public employee unions. Another precedent-reversing decision limited, in the name of newly discovered Second Amendment gun rights, the power of local governments to regulate possession of handguns. The parallel to Republican Party platform positions cannot be ignored.
      The conservative justices all followed the Republican script in their confirmation hearings by promising to interpret the law instead of making law, as activist judges presumably do. In any number of cases, however, the Republican justices have turned out to be activists bent on unmaking the law. Look, for example, at the 5-4 decision in 2007 to uphold a federal ban on so-called partial-birth abortions just seven years after striking down an almost identical state law.
      In last week's decision, the Court threw an earlier ruling, Nevada v. Hall (1979), that allowed a California plaintiff to sue the state of Nevada in a California court for injuries sustained when hit by a car driven in California by a Nevada state employee. In the new case, the tables were reversed: a Nevada man, the wealthy investor Gilbert Hyatt, sued California's tax agency in Nevada court for alleged wrongdoing in an aggressive tax audit back in the early 1990s.
      The conservative majority led by Justice Clarence Thomas concluded that states enjoy sovereign immunity in other states' courts even though the Constitution never says so in so many words. Thomas recited, of course, the various rationales for overruling old decisions, including supposedly unfavorable consequences. But Breyer noted that the old case had been rarely used: only 14 cases in 40 years when a state was sued in another state's courts.
      Liberal justices have prevailed in only three of the Roberts Court's 5-4 reversals of prior decisions by picking up Justice Anthony Kennedy's vote in the same-sex marriage case and by picking up votes from Thomas or Justice Antonin Scalia in two criminal law decisions. Some of the other reversals have come by lopsided votes: two in unanimous decisions, two others by 8-1 votes.
      It bears noting here that the Warren Court was unanimous in two of its most important reversals of prior decisions. All nine justices joined in the decision in Brown v. Board of Education (1954) to overturn the separate-but-equal doctrine from Plessy v. Ferguson. A decade later, the Court was unanimous again in reversing a prior decision when it ruled, in Gideon v. Wainwright (1963), that indigent criminal defendants must be provided an attorney for their defense. History now judges both of those reversals to have been well considered and long overdue.
      As chief justice, Roberts has tried in vain to dispel the odor of political partisanship that hangs over the Court more than perhaps ever before in history, but he has gone along with his fellow conservatives in all of those overtly political cases To paraphrase Roberts from another context, perhaps the best way for the Court to stop being seen as political is, in fact, to stop ruling on the basis of politics.
      Many experts believe that Roberts will shy from providing the fifth vote to flatly overrule Roe v. Wade just as Republicans and President Trump have hoped for in packing the Court with doctrinaire conservatives. As Trump might say if asked, "We'll see what happens."

Sunday, May 12, 2019

The Unfinished Work of Reconstruction

      A day trip to Philadelphia's Independence Mall provides a valuable reminder of the unfinished work of racial justice in America. Slavery was America's original sin and recompense for that sin not yet fully paid, if at all.
      Philadelphia, it will be remembered, is the city where Thomas Jefferson drafted the Declaration of Independence in 1776 with its sweeping promise that "all Men [sic] are created equal" and "endowed . . . with certain unalienable rights, [including] Life, Liberty, and the Pursuit of Happiness." A decade later, delegates from 12 of the 13 states of the new nation gathered to draft a new Constitution in hopes of forming "a more perfect union" while tacitly bowing to the reality of human-chattel slavery in six of those states.
      The occasion for the visit was the opening of a new permanent exhibit at the National Constitution Center, "The Civil War and Reconstruction: The Battle for Freedom and Equality," a project spearheaded by the center's president, Jeffrey Rosen. The 3,000-square foot exhibit, accessibly designed and insightfully curated, features among more than 1,000 artifacts original copies of the three post-Civil War constitutional amendments that together amount to what many historians call "the Second Founding."
      Rosen, a friend and source for years, enthused as he welcomed invited guests for a preview of the exhibit on Tuesday [May 7]. The exhibit, he explained, "takes the story of the promise of the Declaration of Independence that was thwarted in the Constitution and then resurrected by Lincoln and Douglass and enacted in the Reconstruction Amendments." But Lincoln's promise of "a new birth of freedom" went unrealized as the three amendments were neutered by the connivance of white-dominated state governments and the shortsightedness of a Supreme Court that rejected Congress's attempts to enforce the amendments.
      The Thirteenth Amendment, approved by Congress with the war still going on and ratified barely eight months after the Confederacy surrendered, abolished slavery on paper. But it included a loophole, the "criminal exception clause," that allowed involuntary servitude "as a punishment for crime . . . ." That loophole, Rosen explained, effectively consigned many of the freed ex-slaves to servitude on the plantations still owned by the former slave masters.
      The Fourteenth Amendment, ratified in 1868 with its Equal Protection Clause, embodied the goal of equal rights long urged by Ohio's Republican representative John Bingham. It came to naught for a half-century and longer because of a series of Supreme Court decisions beginning with the ruling in the so-called Slaughterhouse Cases(1872) that the amendment protected only a limited list of federally guaranteed rights.
      All three of the amendments included sections specifically authorizing Congress to enact "appropriate legislation" to enforce their provisions. In 1876, however, the Court effectively nullified one of those laws: the Enforcement Act of 1870, which prohibited two or more persons from joining together to deprive anyone of constitutional rights. The 5-4 ruling in Cruikshank v. United States reversed the convictions of armed white insurgents who had ousted the elected black government in a Louisiana parish; the justices decided that the Fourteenth Amendment applied only to state action, not to private conduct.
      In a more serious setback, the Court applied the same rationale in striking down the law Congress had passed in 1875 to prohibit racial discrimination in public accommodations. The 8-1 ruling in Civil Rights Cases (1883) denied Congress the power despite the Fourteenth Amendment's Enforcement Clause to regulate private conduct. It took Congress another 80 years to try again by passing the Civil Rights Act of 1964, a law upheld the same year by a much different Supreme Court under Chief Justice Earl Warren.
      The Fifteenth Amendment, ratified in 1870, seemed on paper to guarantee black men, not women, the right to vote, but southern states found ways to get around it and block most blacks from voting until the Voting Rights Act of 1965. Some 80 percent of black men registered to vote as early as 1867 in southern states even before the Fifteenth Amendment, according to Henry Louis Gates Jr., the Harvard professor and author of the new bookStony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow.
      The Fifteenth Amendment notwithstanding, southern states began disenfranchising blacks not long after Reconstruction ended with the withdrawal of federal troops in 1877. Mississippi provided the template with a new constitution adopted in 1890 by an all-white constitutional convention that imposed literacy tests and poll taxes as requirements for voting. Gates, speaking with Rosen after touring the new exhibit, noted that in Mississippi's neighboring state of Louisiana the number of blacks registered to vote fell from 130,000 in 1898 to only 1,342 in 1904.
      Reconstruction produced "a violent backlash, a racist backlash," Gates explained. His book and his PBS series Reconstruction: America after the Civil War parallel the new exhibit in seeking to counteract the previously dominant view of Reconstruction as a misguided effort to subjugate the defeated southern states. It was instead an ambitious if short-lived effort to fulfill the revolutionary era's promise of equal rights that fell victim to violence, intimidation, and legal stratagems at the hands of resurgent white supremacy.
      With the present-day eruption of white supremacist ideology, Gates was stating the all-too-painful truth in saying, "We have never dealt with the issues raised by Reconstruction." Rosen appeared to agree: "We all share a collective responsibility to make our union more perfect."

Sunday, May 5, 2019

Trump's Lawyers Revive Imperial Presidency

      Three years after quitting the White House in disgrace, the former president Richard M. Nixon explained to the British interviewer David Frost his understanding that the president is not so much above the law as the personal arbiter of the law itself. Asked about the legality of his conduct in the Watergate scandals, Nixon answered as though stating the obvious, "Well, when the president does it, that means that it is not illegal."
      Nixon's claim was so audacious that the video clip has been replayed and viewed countless times as the simplest and most blatant expression of his constitutional offenses.  Four decades later, however, President Donald Trump's lawyers are now reviving the Nixonian theory of the imperial presidency in defending him against two of the many accusations against him of unconstitutional conduct.
      Attorney General William Barr had no compunctions whatsoever in using a nationally televised congressional hearing last week [May 1] to claim for Trump the power to shut down a criminal investigation into his own conduct. Political and legal historians immediately saw a parallel in Barr's view of presidential power to Nixon's ill-fated decision to fire Watergate special prosecutor Archibald Cox in October 1974.
      Admittedly, Barr was just starting law school at the time of the Saturday night massacre in fall 1974, but still he must know that the American public, Congress, and the judicial system decisively rejected Nixon's claimed power to shut down the Watergate investigation. A special federal court found Cox's dismissal illegal and then appointed Leon Jaworski to take over the investigation. The ensuing history gives no support for executive branch partisans such as Barr.
      Here, from Barr's testimony before the Senate Judiciary Committee as questioned by ranking Democrat Dianne Feinstein, is his explanation for Trump's power to remove special counsel Robert Mueller had he chosen to do so. Note at the outset that Barr misstates the Mueller report by depicting the evidence as conclusively disproving the accusations against Trump rather than falling short of provable obstruction of justice.
      "If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for removing an independent counsel. So that's another reason we would say the government would have difficulty proving this [obstruction of justice] beyond a reasonable doubt."
      Barr went even further in his role as Trump's lapdog by contending that Trump's direction to his former White House counsel Don McGahn to lie about Trump's instruction to raise a phony conflict of interest issue to try to remove Mueller. "That's not a crime," Barr said without a moment's hesitation. He reasoned that McGahn's lie would not have impeded Mueller's investigation because McGahn had already testified about the episode.
      In the meantime, Trump's lawyers were advancing a similarly expansive view of presidential power in defending him in federal court against a lawsuit seeking to stop him from further violations of the Constitution's Emoluments Clauses. Ruling in a case brought by Democratic members of Congress, Blumenthal v. Trump, U.S. District Court Judge Emmet Sullivan rejected Trump's lawyers' various arguments for narrowing the definition of domestic or foreign "emoluments" that the president, along with other federal officers, are constitutionally prohibited from accepting without consent of Congress.
      Sullivan, a no-nonsense judge appointed to District of Columbia courts by two Republican presidents before being appointed to the federal bench by President Bill Clinton, devoted most of his 48-page opinionto a point by point refutation of the arguments for overlooking all the foreign governments booking expensive stays or events at Trump's Pennsylvania Avenue hotel. In sum, Sullivan found that the Framers understood emoluments broadly to include any financial benefits and viewed the clause as a safeguard against foreign influence on the president.
      Apart from those unsuccessful arguments, Trump's lawyers also argued that the court had no power to order the president to stop accepting foreign emoluments. Instead, they argued, the plaintiff lawmakers "can only obtain relief from the president"--totally up to the president, in other words, whether to comply with the Constitution or not. Sullivan answered by citing judicial precedents. "When there is no other remedy, courts have allowed suits against the President to proceed," he wrote.
      The president's duty under the Emoluments Clause, Sullivan went on, was clear and absolute. "The acceptance of an Emolument barred by the Clause is prohibited unless Congress chooses to permit an exception . . . ," the judge wrote at page 47. "Given the 'sweeping and unqualified' Constitutional mandate, the President has 'no discretion  . . . no authority to determine whether to perform the duty' to not accept any Emolument until Congress gives its consent."
      Trump's lawyers had one more argument: an injunction to block any further emoluments, they warned, would create a "significant burden" for a president who, it needs to be noted, refused to divest himself of entangling financial interests before entering the White House. "It may take judgment and planning to comply with the Clause," Sullivan wrote, "but he has no discretion as to whether or not to comply with it in the first instance."
      With lawless arguments such as these, it is no wonder that the disgruntled conservative commentator Max Boot now views Trump's presidency as "criminal" and Barr's "jaw-dropping" performance as reminiscent of Nixonian hubris. With the Mueller investigation over, Boot wrote in a column over the weekend [May 4], "we are left with the dismaying likelihood that the president will now feel emboldened to commit ever greater transgressions to hold onto power."

Saturday, April 27, 2019

On LGBT Rights, a Roll of the Dice at Court

      For several decades now, liberal advocacy groups have been wary of bringing test cases up to the Supreme Court for fear that the built-in conservative majorities would dash their hopes by turning an unsettled legal issue into a nationwide rule on the other side. That concern surfaced quickly after the justices agreed this week [April 22] to hear test cases later this year to determine whether the federal civil rights law enacted in 1964 prohibits employers from discriminating against LGBT employees or job applicants.
      "Supreme Court Will Smash Gay Rights Next Term" was the banner headline on the downbeat column that Elie Mystal, executive editor of the legal affairs blog Above the Law posted from his New York City watching post three hours after the Court's orders were issued in Washington. Mystal acknowledged that the Court had to take the cases, given a circuit split on the issue, but he warned that worse than a circuit split was "the Supreme Court deciding the issue poorly."
      Two other liberal Supreme Court commentators followed within a couple of days to warn more ominously that the Roberts Court conservatives might use the cases to scrap precedents that have extended the Civil Rights Act's prohibition against sex discrimination to cover sexual harassment — whether opposite- or same-sex harassment — and hostile work environments. In his column for the online magazine Slate, Mark Joseph Stern warned that the rulings in the three cases accepted for review "could demolish sex discrimination law as we know it." Ian Milhiser, legal affairs columnist for the progressive news site ThinkProgressMemo, similarly warned that the Court might be "on the cusp of rewriting decades of sex discrimination law" that interpreted the 1964 law to prohibit sexual harassment and gender stereotyping in the workplace.
      All three commentators, friends and colleagues of mine, argue that the provision in the 1964 law's Title VII that prohibits discrimination "on the basis of sex" naturally and inevitably prohibits discrimination on the basis of sexual orientation or gender identity. But they all fear that the five Roberts Court conservatives, including the chief justice himself, will reject what has become a jurisprudential consensus on a broader understanding of the law.
      With all that doom and gloom, the New York Times' former Supreme Court correspondent, Linda Greenhouse, stepped in to argue against making "a snap judgment" about the outcome of the cases before merits briefing even begins. Greenhouse analyzed the justices' protracted consideration of the cases before granting certiorari as a sign that, in fact, the conservative bloc's minds may not be fixed on ruling against LGBT rights.
      As a reminder, Title VII law broadly prohibits any job-related discriminatory treatment "on the basis of [an] individual's race, color, religion, sex, or national origin" (emphasis added.). The late-added prohibition against sex discrimination, intended by opponents as an impossible-to-swallow poison pill, was debated in Congress only cursorily before being signed into law as the first of the three major civil rights laws enacted in the mid-1960s.
      No one can seriously argue that Congress intended the law to protect gay men, lesbians, or transgender individuals against discrimination in the workplace. Gay rights advocates lobbied for years in Congress and in state capitals to add sexual orientation and gender identity to anti-discrimination laws with mixed results before concentrating their efforts on achieving their goal through the courts.
      By now, however, dozens of state and federal courts, including two of the federal circuit courts of appeals, have ruled that way, according to a compilation by the federal Equal Employment Opportunity Commission (EEOC). The judges who have adopted that position include a number of well-known conservatives, as Stern and Greenhouse both note. Greenhouse notes as one example that Judge José Cabranes concurred in the Second Circuit decision now under review by stating matter-of-factly that sexual orientation "is a function of [an individual's] sex."
      The plaintiffs in the three cases represent two of the initials in the LGBT alphabet. The former New York City skydiving company Altitude Express fired instructor Donald Zarda in 2010 after he sought to reassure a female customer by telling her that he was gay; he died four years later in an accident and the case, Altitude Express Inc. v. Zarda, is now litigated by his sister and his former partner. Gerald Lynn Bostock, petitioner in Bostock v. Clayton County, Georgia, says the county's juvenile court system fired him in 2013 on a pretext after supervisors learned of his participation in gay community activities.
      The EEOC is representing the interests of the plaintiff in the third case, R.G. and G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission: Amiee Stephens, a transgender woman, who was fired by a Detroit-area funeral home after reporting for work post-transition dressed in women's clothes.  Greenhouse spotted an encouraging sign in the Court's rephrasing of the question presented in the case to include whether Title VII "prohibits sex stereotyping . . . "
      With no inside information on the justices' months-long deliberation before teeing up the cases, the best that can be said now is that LGBT advocates are hoping for a favorable roll of the dice. They have been in this situation before. In 1986, a test case on anti-sodomy laws turned into the unfavorable, later-overruled decision in Bowers v. Hardwick upholding those laws. Four years ago, however, they marked their greatest legal victory to date with the Court's 5-4 decision in Obergefell v. Hodges (2015) guaranteeing marriage rights to same-sex couples nationwide.
      Justice Anthony Kennedy's retirement from the Court leaves LGBT rights advocate without their most effective ally among the nine. The four liberal justices can be counted on to support LGBT rights in the new cases, but the five conservatives — including Kennedy's successor, Brett Kavanaugh — have no record of supporting LGBT protections in any of their prior cases.
      Roberts' impassioned dissent in the marriage equality cases casts a dark cloud over hopes that he might help form a five-vote majority for LGBT rights in the new cases. But the doomsaying from liberal commentators makes clear this much: a ruling to limit Title VII protections for LGBT employees will come, if it does, at the expense of the conservatives' professed commitment to "plain text" statutory interpretation and respect for precedent. 

Sunday, April 21, 2019

With Trump's Lies Detailed, No Charges, No Exoneration

      Lies, lies, lies, and more lies. As president, Donald Trump's lies number in the thousands, according to the fact-checking news site PolitiFact. Now, thanks to the Mueller Report, we know that all the president's men are liars too — and White House press secretary Sarah Huckabee Sanders as well.
      With Trump complaining all the while about how long the special counsel's investigation was taking, several individuals associated with the Trump campaign were lying to FBI agents about the extent of their contacts with Russian-affiliated individuals. The lies "materially impaired the investigation," the 448-page report notes at page nine of the executive summary.
      Trump himself lied on several occasions as he sought to conceal the extent of his efforts to derail — or, in legal parlance, obstruct —  the special counsel's investigation. Trump lied, the report concludes, when he denied news reports that he had instructed White House counsel Don McGahn to fire Robert Mueller as special counsel.
      The Mueller Report cites Trump's purported directive as one of the ten episodes it identified as suggesting obstruction of justice. McGahn refused what he called a "crazy shit" directive. Trump's denials notwithstanding, McGahn's accounts of the after-hours telephone conversation were consistent and corroborated by his notes, according to the report.
      Sanders was fingered for one notable lie, which was also aimed at concealing Trump's obstructive efforts. She lied in the White House briefing room when she claimed to have heard from "countless" FBI agents voicing a lack of confidence in the fired FBI director James Comey. Sanders conceded to the special counsel's office that she had "no basis" for a statement that, in context, supported what was then Trump's explanation for firing Comey.
      Asked on Friday [April 19] by Good Morning America's George Stephanopoulos to explain herself, Sanders minimized the lie by describing it as an unscripted "spur of the moment" reply to a reporter's question. Put differently, Sanders instinctively makes up stuff as needed to deflect reporters' questions. As of the weekend,  Sanders appeared to be at no risk of admonition or dismissal for this lie or any of her others.
      Attorney General William Barr, still new to Trump's orbit two months after his party-line Senate confirmation, added to the Trump playbook of deception and misdirection with a 20-minute statement about the Mueller Report before it was even released. Once released, the report showed that Barr misled or flatly lied in among other remarks depicting Trump as cooperating completely with the investigation and in describing Mueller's decision not to seek to indict the president for obstruction of justice.
      Short of complete cooperation, Trump declined the special counsel's request for an in-person interview and gave written answers that the report describes as incomplete and filled with claimed lapses of recollection. Mueller considered a subpoena to force the president to testify under oath but backed off rather than take on a protracted legal fight.
      Barr was also misleading in suggesting, just as he had done in his initial summary of the report a week earlier, that Mueller had left it up to him to determine whether Trump could be indicted for obstruction. Instead, Mueller bowed to the never-tested Office of Legal Counsel memo that the president is not subject to indictment while in office and followed by saying that it was up to Congress to decide what to do. "We concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice," the report states.
      Barr misquoted the report when he said it found "no collusion" between the Trump campaign and the Russians. To the contrary, the report specified that "collusion" has no legal meaning and concluded more tentatively. "The investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities," the report states.
      Still, Barr deserves some credit for congratulating the special counsel's office for confirming what Trump has never acknowledged: the systematic efforts by Russian agents to interfere in the 2016 presidential election. With that said, Barr nevertheless passed lightly over what the report calls "numerous links between the Russian government and the Trump campaign."
      As the nation's chief law enforcement officer, Barr might have been expected to highlight what the special counsel's office actually accomplished by way of prosecutions. That record puts the lie to Trump's repeated description of the investigation as a witch hunt. In fact, five Trump associates have already pleaded guilty to or been convicted of lying to the FBI or Congress: former campaign chairman Paul Manafort, former campaign advisers Rick Gates and George Papadopoulos, former national security adviser Michael Flynn, and Trump's former personal attorney Michael Cohen. Meanwhile, Trump's close associate Roger Stone awaits trial on charges of making false statements.
      The report lists Trump's false pre-election denials of the links between his campaign and the Russians as the beginning of his arguably obstructive conduct followed by, among other actions, the firing of Comey and the thwarted effort to remove Mueller. With those episodes detailed, the report explicitly avoids exonerating Trump, the president's claims to the contrary notwithstanding: "[I]f we had confidence after a thorough investigation of the facts that the President did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment."

Saturday, April 13, 2019

At Southern Border, Malign Neglect for "Crisis"

      The so-called crisis at the United States' southern border is a challenging policy issue that President Trump has exaggerated for political purposes and that his administration has mishandled through legal mistakes and administrative indifference.
      In this, the most lawless presidency in U.S. history, news of another Trump administration policy initiative ruled illegal by a federal judge provokes nothing more than a "dog-bites-man" reaction. The administration's plan to send border-crossing asylum applicants back to Mexico was ruled late last month [March 27] to run afoul of immigration law and to have been adopted without following proper administrative procedure.
      Meanwhile, the Department of Homeland Security, the umbrella Cabinet-level department responsible for immigration and other important national security issues, has an acting secretary after Trump eased Kierstjen Nielsen out of the post. Nielsen resigned this week [April 7] under duress, according to anonymous friends quoted in various news accounts, after drawing Trump's scorn for nixing some of his tough-talking policy ideas as contrary to law.
      Trump has been whipping up hysteria about the growing number of migrants seeking asylum at the southern border ever since the months leading up to the 2018 midterm elections. In demagogic rhetoric, Trump tried with only limited success to whip up his political base by depicting the refugees fleeing violence and disorder in their Central American homelands as would-be invaders.
      Admittedly, the growing number of refugees at the border pose difficult challenges for an immigration system overburdened along the 2,000-mile long southern border and also in U.S. immigration courts. With 424 judges, immigration courts currently have a backlog of 850,000 cases. Asylum cases contribute to that backlog, but they account for fewer than one-third of the total, according to a report published last fall by the pro-immigration Migration Policy Institute.
      The institute's 35-page report, coauthored by Doris Meissner, the Clinton administration's commissioner of what was then the Immigration and Naturalization Service (INS), sought to cut through the political divisions on the issue by proposing a package of administrative steps to reduce the now customary long wait times in resolving asylum cases. The key to the streamlining package is to get more cases decided administratively within the U.S. Citizenship and Immigration Services (USCIS) asylum division without bucking them to the courts.
      The report notes that the backlog of asylum cases was reduced from more than 400,000 in the mid-1990s to fewer than 100,000 from 2005 through 2014, thanks in part to a doubling of the number of asylum officers within USCIS. The system had been "fair, timely, and well managed," the report concludes, until it fell behind as the number of asylum applicants increased fivefold from 28,000 in 2010 to more than 140,000 in 2017.
      The customary delays of anywhere from two to five years create what the report calls "incentives for individuals without qualifying claims to apply" because they can remain within the United States and perhaps obtain work authorizations while their cases are pending. In the meantime, individuals with qualifying claims for asylum wait in the queue. The results, the report concludes, "compromise both humanitarian protection and immigration enforcement missions."
      Francis Cissna, the Trump administration's USCIS director, spoke favorably about the institute's report at a program it cosponsored in November at Georgetown Law School. But Sharon Pierce, a policy analyst who works with Meissner at the institute, says they have heard nothing concrete from the administration since then.
      "The Trump administration is not interested in solving the problem," Sen. Chris Van Hollen, a Maryland Democrat, remarked on MSNBC on Friday [April 12]. "They're much more interested in the politics of it."
      The administration is focused not on making the system work better but making it tougher. Thus, Attorney General Jeff Sessions instituted a major policy change during his tenure at the Justice Department by eliminating domestic or gang violence as grounds for asylum. As a result, the percentage of asylum applications approved has fallen by more than half from close to 50 percent to less than 25 percent.
      Nielsen announced another policy change in December. The so-called Migrant Protection Protocols provided that asylum applicants apprehended after illegal entry would be returned to Mexico instead of being detained for expedited removal proceedings. Nielsen called it "an historic action to confront illegal immigration," but U.S. District Court Judge Richard Seeborg called it illegal in a 27-page ruling  issued early this week [April 8].
      Individual plaintiffs in the case, originally styled as Innovation Law Lab v. Nielsen, presented what Seeborg called "uncontested" evidence that they fled their homes in El Salvador, Guatemala, and Nicaragua to escape "extreme violence," including rape and death threats. He found that returning them to Mexico ran counter to an international protocol codified as U.S. law that prohibits returning aliens to "places where they face undue risk to their lives or freedom."
      As with the unbuilt border wall, Trump prefers sounding tough to being effective. He threatened to close the southern border completely, deterred not by Nielsen's warning that the move would be illegal but by predictions that it would result in economic chaos. Among other steps to address the problem, one would be to conduct asylum interviews in the migrants' home countries instead of at the border. Increased aid to those countries might help, but Trump instead threatens to cut it off.
     To make it worse, the administration's "zero tolerance" policy of arresting all illegal border crossers results in a true humanitarian crisis marked by kids locked up in cages and aduilts jailed in primitve conditions.So far, the administration's policy of malign neglect appears to be having no effect other than making the non-crisis worse.

Sunday, April 7, 2019

At Supreme Court, Open Door for Gruesome Executions

      Raymond Bucklew may deserve to die for the violent crimes he committed 30 years ago as his girlfriend was breaking up with him. But he does not deserve to die a torturous death as the state of Missouri carries out the legally upheld death sentence.
      The Supreme Court has just used Bucklew's case, however, to open the door to executions in the future that will mock the Eighth Amendment's prohibition against "cruel and unusual punishments." The 5-4 majority in Bucklew v. Precythe has apparently adopted a legal rule previously crafted only by Justice Clarence Thomas that the state can use a method of execution with a substantial risk of severe pain during the procedure as long as the state does not deliberately intend to inflict unnecessary pain.
      Bucklew's case drew only limited attention as he argued through three levels of federal courts over the past five years that he has a rare medical condition that will result in severe pain as he lies dying during a lethal injection. But Justice Neil Gorsuch's majority opinion turned the medical oddity of Bucklew's case into an invitation for gruesome deaths for condemned inmates in the future.
      Bucklew has a rare medical condition — technically, cavernous hemangioma — characterized by the formation of huge clumps of blood vessels in his head, neck, throat, and airway. That condition, he argued on the basis of detailed medical evidence presented in a federal court trial, would interfere with the sedative used in a lethal injection and in effect would cause him to suffocate to death on his own blood.
      "[T]he Eighth Amendment does not guarantee a prisoner a painless death . . . ," Gorsuch wrote in a critical part of the 31-page opinion rejecting Bucklew's claim. Gorsuch pivoted from that unremarkable statement to quote Thomas's passages from two prior decisions that would disapprove of only those methods of execution that "superadd terror, pain, or disgrace" in carrying out the death sentence.
      Thomas wrote that passage for the first time in an opinion joined by only one other justice, the late justice Antonin Scalia, in rejecting a Kentucky inmate's Eighth Amendment challenge to the state's three-drug lethal injection protocol. Chief Justice John Roberts' plurality opinion in Baze v. Rees (2008) set out a different test that death row inmates can challenge a method of execution if it carries a substantial risk of severe pain during the procedure.
      Gorsuch in effect incorporated Thomas's test, which garnered only two votes, on the ground that those two votes were necessary for the majority result in Baze. It was, as Slate's Supreme Court correspondent Mark Joseph Stern called it in a critical article, a remarkable "sleight of hand." Worse, it amounted to jurisprudential alchemy by converting a minority view into supposedly authoritative precedent.
      "Neil Gorsuch Just Made Death Worse," was the headline on a strongly argued critique
that Elie Mystal,  managing editor of the legal affairs blog AbovetheLaw, wrote for The Nation. "In an appalling majority opinion," the deck headline added, "Gorsuch endorses pain-filled deaths for people subjected to capital punishment."
      Under Baze, an inmate challenging a method of execution must offer a "feasible and readily implemented alternative method" that would reduce the risk of severe pain. Bucklew complied with that bizarre requirement by proposing lethal nitrogen gas; the state's lawyers answered that nitrogen gas is an untested method that no state has adopted.
      Gorsuch, it will be recalled, faced his most difficult hurdle in his Senate confirmation hearing in April 2018 for his lack of sympathy to the "frozen trucker" who was fired for driving his cab with inoperable heater to a place where he could escape from subfreezing temperatures. Thus, it is no surprise that Gorsuch had no sympathy for Bucklew, who shot and killed his girlfriend's male companion and then abducted her at gunpoint and raped her at a distant location.
      Gorsuch found Bucklew's evidence on the risks of Missouri's planned lethal injection too weak to avoid summary judgment at the trial level in the state's favor. Writing for the four liberal dissenters, Justice Stephen G. Breyer argued correctly butto no avail that Bucklew had "easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering."
      Not content with condemning Bucklew to a painful death, Gorsuch went on to criticize as well the cumbersome and treacherous procedures that death penalty lawyers must master and navigate to try to ensure that capital punishment is carried out, if at all, reliably and fairly. In truth, it is not, as seen in the scores of death sentences reversed over the past two decades and in the skewed racial and ethnic demographics of death rows nationwide.
      Judges, Gorsuch wrote in closing, should ensure that death penalty challenges are "resolved fairly and expeditiously" and should "police carefully against attempts to use such challenges as tools to interpose unjustified delay." Justice Sonia Sotomayor aptly chided Gorsuch for adding "inessential" dicta to an already contentious decision.
      "There are higher values than ensuring that executions run on time," Sotomayor wrote. "If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness."