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."

Sunday, March 31, 2019

Trump's "Mass Deception" on Mueller Report

      Special counsel Robert Mueller dutifully submitted a 400-page report to Attorney General William Barr this month [March 23], but one week later Mueller is the only major figure in this constitutional melodrama yet to be heard from. President Trump and Barr have given differing interpretations of the report, and so too Capitol Hill Republicans and Democrats along with Trump's supporters and opponents all across the country.
      Trump, who has not read the report, called it a "total exoneration" in remarks from the White House lawn and in a gloating harangue to a campaign-style rally in Grand Rapids, Michigan, on Thursday [March 28]. Barr, who has read the report, had previously stated in a four-page letter [March 24] that the report "does not exonerate" the president. The fact-checking news site PolitiFact noted that discrepancy as one of Trump's misstatements to the crowd along with the false claim that the investigation into the Trump campaign's contacts with the Russians began only after the election and that the investigation had resulted in "framing innocent Americans."
      One week out, the battle lines have been drawn in what Brookings Institution expert Benjamin Wittes calls "the war of the narratives." Mueller's report will remain unseen for a couple of weeks as Barr, who apparently is quicker at reading than redacting, blacks out grand jury material, classified information, and any material bearing on the spinoff pending investigations. With the delay, Capitol Hill Democrats are demanding to see "the Mueller report, not the Barr report" and threatening to subpoena the document itself if necessary.
      Wittes, presiding over a panel discussion at Brookings on Thursday [March 28], noted with regret that Mueller had not taken his earlier advice to prepare an executive summary to be released as soon as he had submitted the full report to the attorney general. For now, Trump is winning "the war of the narratives" by wielding his patented WMD: "weapons of mass deception." Barr too is deceiving the public, according to one of the Brookings experts, by defending the decision that Mueller left to him essentially to absolve Trump of any obstruction of justice.
      Barr based his decision in part on the perverse logic that "many" of Trump's arguably obstructive actions "took place in public view"—thus ratifying Trump's campaign-time boast that he could shoot someone in full public view and get away with it. Barr also said that Mueller had "recognized" that the evidence "does not establish that Trump was involved in an underlying crime related to Russian election interference" and that "the absence of such evidence bears upon the President's intent with respect to obstruction."
      Barr said he reached this conclusion, in consultation with deputy attorney general Rod Rosenstein on the merits without regard to any question of whether the president is subject to a criminal indictment. But it must be noted that Barr had already absolved Trump of obstruction in the long memo he wrote months before his appointment as attorney general. House Speaker Nancy Pelosi complained that Barr was now doing exactly what Trump intended in choosing him to lead the Justice Department—that is, "to make sure the president is above the law."
      At the Brookings panel, one member of the audience asked whether it was "widely accepted" that there could be no obstruction of justice charge without proof of an underlying crime. "That's not the law," Mary McCord, a former Justice Department official now teaching at Georgetown Law School, responded. "Not only is it not widely accepted: it's not the law."
      Wittes and other panelists confessed some surprise that Mueller had in effect passed the obstruction issue to Barr without recommendation. "It's clear that there was considerable obstruction of justice," Wittes remarked in the opening. With the report still unseen, Wittes's Brookings and Lawfare colleague Susan Hennessey agreed. "They found lots and lots of stuff but just a hair below the threshold of a criminal indictment," she said.
      By now, much of the "stuff" that must be in Mueller's report is well known and no longer in dispute: the Trump Tower meeting that Donald Trump Jr. took with Russian agents promising dirt on Hillary Clinton; the "back channel" communications link with the Russians that son-in-law Jared Kushner wanted to establish at the Russian embassy itself; national security adviser Michael Flynn's pre-inauguration meeting with Russians to talk about easing U.S. sanctions. On and on.
      House Intelligence Committee Chairman Adam Schiff, under pressure to resign from Trump and the committee's Republicans, ran through the whole list in a dramatic reading as the committee opened a hearing on Russian interference in the election last week [March 28]. He called it "evidence of collusion" and challenged the Republicans for turning a blind eye. "I don't think it's OK," Schiff said. "And the day we think it's OK is the day we have lost our way."
      Mueller's supposed "witch hunt" ended with a string of guilty pleas, convictions, and still pending indictments against Trump associates and campaign aides, such as former campaign chairman Paul Manafort and confidante Roger Stone, and a dozen Russian agents, admittedly beyond the reach of U.S. law. The report presumably lays all that out, but for now Trump and his supporters are winning the war of the narratives while the other side waits, disarmed, for a truer accounting of the facts.

Sunday, March 24, 2019

At Supreme Court, Racial Justice an Elusive Goal

      Keith Tharpe and Curtis Flowers are two African American defendants convicted of capital murder and sentenced to death in southern states after trials infected with racial bias. The Supreme Court considered both of their cases last week by ending Tharpe's effort to overturn his conviction [March 17] while appearing receptive during arguments [March 19] on Flowers' plea for a new trial based on the white prosecutor's blatant racial bias in jury selection.
      The two Supreme Court cases, with one loss for racial justice and not yet a vindication for racial justice in the other, are the most recent evidence that racial discrimination remains widespread in criminal justice systems — certainly in the South and just as certainly elsewhere. Dating as far back as the Scottsboro Boys case in the 1930s, the Supreme Court has stood guard against the most blatant examples of racial injustice, but too often the present-day Court is either unwilling or unable to ensure the goal carved in the pediment above its main entrance: Equal Justice Under Law.
      To their credit, eight of the nine justices were all evidently disturbed by the blatant racism practiced by District Attorney Doug Evans in his protracted efforts over six trials dating over 13 years to convict Flowers of killing four people in 1996 at the small-town store where Flowers had formerly worked. In two of those trials, Evans, the longtime district attorney for a seven-county judicial district in north central Mississippi, was found to have violated the Supreme Court-established rule against excluding potential jurors because of their race; a third conviction was overturned because of other prosecutorial misconduct.
      The two other previous trials ended in mistrials with the predominantly white juries unable to agree on a unanimous verdictthus, suggesting that the evidence against Flowers was less than clear-cut. Those trials with hung juries were the only ones with more than one African American jurorthus, suggesting the reason for Evans' unrelenting efforts to use so-called peremptory challenges to keep blacks off the jury.
      The 2010 conviction under review in Flowers v. Mississippi came after a trial in which Evans used all but one of his six peremptory challenges to strike black potential jurors. Viewed in isolation, Evans' actions in the sixth trial would seem less than remarkable to courthouse reporters with experience in covering racially charged criminal trials in the South or elsewhere.
      White prosecutors routinely question black jurors more aggressively than white jurors to try to develop what can pass for "race-neutral" reasons for keeping blacks off juries. The Supreme Court's precedent-setting decision in Batson v. Kentucky (1986) held that exercising peremptory challenges against potential jurors based on their race in state court trials violates the Fourteenth Amendment's Equal Protection Clause.
      Over time, lower courts have developed and the Court has accepted a three-part test to determine whether Batson has been violated. The party raising the issue, normally a black defendant, has the initial burden to show a prima facie case of discrimination; with that standard met, a court can order the other party, normally the prosecutor, to provide race-neutral reasons for excluding black jurors. The burden then shifts back to the defendant to argue and prove purposeful discrimination.
      As a practical matter, trial judges routinely defer to prosecutors' explanations: Evans may be one of the few prosecutors ever to have two adjudicated Batson violations on his resume. But Evans has been consistent in racial profiling of potential jurors, according to statistical evidence compiled by American Public Media reports. As part of a path-breaking podcast, the APM reporters found that in 225 trials in Evans' tenure, he had used peremptory challenges to strike 49.81 percent of black jurors — nearly half —  but only 11.21 percent of white jurors.
      Representing Flowers, the NAACP Legal Defense Fund's lawyer Sheri Lynn Johnson opened her argument on Wednesday by saying that the "only plausible explanation" for Evans' conduct over six trials was that he was pursuing "an unconstitutional end . . . to seat as few African American jurors as he could." From the bench, Justice Samuel A. Alito Jr., perhaps the most prosecution-oriented of the five conservatives, called the history of the case "very troubling," but he joined later with others in struggling for a general rule to craft for Batson cases in this most discreditable of cases.
      By the end of the hour-long argument, eight justices, all but Clarence Thomas, had registered their concerns about Evans' conduct. But with Johnson at the lectern for rebuttal, Thomas asked a question for the first time in three years: a gotcha question aimed at eliciting Johnson's admission that Flowers' trial counsel had exercised her peremptory challenges to exclude white, not black, jurors.
      Two days before the Flowers argument, the Court had turned aside Keith Tharpe's plea for a new trial based on late-developed evidence that one of the jurors in his capital murder trial in Jackson, Georgia, in 1991 had made blatantly racist statements in jury room arguments for sentencing Tharpe to death. Without dissent, the justices declined on procedural grounds to review the most recent federal appeals court decision to let the conviction and death sentence stand. 
      Justice Sonia Sotomayor went along with shelving Tharpe's case but only after saying she was "profoundly troubled" by the facts of the case. Quoting from a prior decision, she ended with a blunt warning: "The work of 'purg[ing] racial prejudice from the administration of justice' is far from done."

Sunday, March 17, 2019

At Harvard, a #MeToo Clash With Lawyers' Role

      The #MeToo Movement is colliding on the Harvard University campus with the time-honored tradition in American law that lawyers do not shirk from representing unpopular clients or unpopular causes. The clash emerged as Ronald Sullivan, a Harvard Law School professor and resident faculty dean of one of Harvard's undergraduate houses, came under fire for joining the dream team of lawyers representing the Hollywood producer Harvey Weinstein in his upcoming criminal trial on sexual misconduct charges.
      Sullivan, director of the law school's criminal justice institute and the first African-American to serve as faculty dean of one of Harvard's undergraduate houses, is under pressure on the Cambridge, Mass., campus from among others a student group critical of Harvard's record in combating sexual misconduct. Some students have called for him to step aside from his role as Winthrop House faculty dean, but 52 of Sullivan's law school colleagues defended his participation in the Weinstein case in a joint letter and warned the college administration against dismissing him from his residential deanship.
      Sullivan's on-campus critics are right, however, in seeing a conflict in the dual roles of defending Weinstein and ensuring a supportive climate on campus for victims of sexual misconduct. Sullivan has added to the conflict with comments denigrating the #MeTooMovement and casting doubt generally on the credibility of accusations of sexual misconduct. That conflict will inevitably grow if Sullivan emerges as the public voice for challenging the credibility of all of Weinstein's accusers.
      The tradition of representing unpopular clients dates back as far as John Adams' defense of the British soldiers accused in the Boston Massacre despite Adams' anti-royalist views. The lawyers' obligations have been celebrated not only in legal ethics classes but also in fiction and film adaptations such as To Kill a Mockingbird and John Grisham's A Time to Kill.
      The heroes of those two films, Atticus Finch and Jake Tyler, portrayed by Gregory Peck and Matthew McConaughey respectively, represented wrongly accused black defendants in predominantly white towns in the racially polarized South. Real-life lawyers, black and white, similarly risked public disapproval and scorn in representing black defendants and white civil rights crusaders in the civil rights era. So too the left-leaning lawyers who represented public figures and government officials caught up in the anti-communist McCarthyite hysteria of the 1950s.
      Sullivan has wrapped himself in this tradition ever since the New York Post first reported in mid-January that he was joining two high-profile criminal defense attorneys in representing Weinstein in his forthcoming criminal trials. Weinstein is admittedly unpopular: he has been public enemy number one for the #MeTooMovement ever since the bushel basket of sexual misconduct accusations began to surfaced in October 2017.
      Weinstein does not lack, however, for top-notch lawyers willing to provide him the kind of defense needed to assure a fair trial. Before enlisting Sullivan, Weinstein had already secured the services of two of the nation's most prominent and successful criminal defense lawyers: New York's José Baez and Denver's Pamela Mackey. Baez is best remembered for his successful defense of Casey Anthony in the 2011 trial for murder in the drowning death of her young daughter. Mackey gained national prominence for successfully defending the basketball star Kobe Bryant against rape charges in 2003.
      Sullivan has paid his dues in reform-minded criminal defense work by, for example, helping to design an indigent defense system in Louisiana after hurricane Katrina and helping to build a conviction integrity unit for the Brooklyn district attorney's office. He has represented in sexual misconduct cases accusers and defendants alike. But with no compelling need for his services in Weinstein's case, cynics are entitled to view the reasons for Sullivan's participation to be less than idealistic: the fee and the publicity.
      All of Sullivan's experience and good deeds cannot offset the discomfort that any sexual misconduct victims among his undergraduate charges would feel in bringing their cases to Sullivan as their resident faculty dean. By now, more than 300 students have signed a petition that cites this issue as their reason for calling him to step aside from his Winthrop House role.
      Sullivan has acknowledged the concern at least in part by designating a female assistant as the point person at Winthrop House for receiving complaints of sexual misconduct. But he has also cast himself as the innocent victim of students unmindful of the presumption of innocence and the importance of legal representation for even the worst of the worst of criminal defendants. He has complained of what he called incendiary coverage of the issue by the student newspaper, the Harvard Crimson, including a signed op-ed by two undergraduates calling for him to be replaced as Winthrop House dean.
      The Harvard administration has responded to the controversy by instituting a so-called "climate survey" of Winthrop House's several hundred undergraduates. Along with playing the "blame the messenger" card, Sullivan is playing the race card by noting that the college has never before conducted a similar survey to check on a white faculty dean's performance. The controversy took an ugly turn recently when someone painted the graffito "Remove Sullivan" on one of Winthrop House's redbrick walls.
      The controversy can only turn uglier for undergraduates and Sullivan alike once he engages actively in Weinstein's defense. For all concerned, the best course now is for Sullivan to withdraw and turn full attention to his full-time job as professor and in loco parentis to his students.

Sunday, March 10, 2019

In Census Case, No Basis for Citizenship Question

      Wilbur Ross's various ethics issues as secretary of Commerce place him among a gaggle of President Trump's discreditable Cabinet members. But Ross may belong at the top of that list now that two federal judges have found that he lied to Congress and violated executive branch regulations, congressional statutes, and at least one constitutional clause in his obsessive effort to add a citizenship question to the 2020 national census.
      Ross began hectoring his staff within his first weeks at Commerce about adding a citizenship question to the short-form Census questionnaire due to be distributed to all U.S. households early next year. He needed a full year in office before getting his ducks in a row to make the decision in a memorandum dated March 26, 2018. He had been egged on by, among others, the former White House aide Steve Bannon, the vote fraud-obsessed former Kansas secretary of state Kris Kobach, and at least two Republican senators: Arkansas' Tom Cotton and Texas's John Cornyn.
      With no expertise himself in demographics or statistics, Ross persisted in the face of unanimous advice from former Census Bureau directors, academic demographers, and the American Sociological Association that a citizenship question will inevitably result in an undercount of several millions among individuals in hard-to-count group such as immigrants and non-English speakers. The resulting undercount could have real-world consequences for some states and some localities in the form of reduced federal funding or proportionate reduction in local funding from state coffers.
      Federal court judges in New York and San Francisco have blocked Ross's efforts so far in suits brought respectively by a coalition of 18 states, 15 municipalities, and various immigration advocacy groups; and by the state of California, the city of San Jose, and the Black Alliance for Immigration. The Trump administration fast-tracked the New York case, Department of Commerce v. New York, to the Supreme Court by asking the justices to schedule the appeal for argument in April without waiting as usual for a ruling by a federal appeals court.
      Trump administration officials and supporters have correctly noted that the once-every-decade census required under the Constitution to apportion seats in the U.S. House of Representatives included questions about citizenship beginning in 1820 and continuing until 1950. The longer-form American Community Survey, distributed to randomly selected households, does include a citizenship question, but the Census Bureau, part of the Commerce Department and thus subject to Ross's direction, dropped the citizenship question from the more comprehensive survey by the 1960 census because of evidence that it would reduce participation and thus result in a significant undercount.
      Judge Jesse Furman in New York was the first of the two Obama-appointed judges to find Ross's decision to add the citizenship question illegally "arbitrary and capricious" as violating not only the Administrative Procedure Act (APA) but also a Census Act provision enacted in 1976 to require three years' prior notice to Congress before adding questions to the all-household short-form questionnaire. Furman's admittedly long 277-page decision issued on Jan. 15 opened by noting that the government's own experts and documents confirmed that a citizenship question "will result in a significant reduction in self-response rates among noncitizen and Hispanic households."
      Furman, formerly an aide to the Republican attorney general Michael Mukasey and later a clerk to the centrist-leaning federal appeals court judge José Cabranes and Supreme Court justice David Souter, also found Ross's decision in violation of guidelines issued by the Bush administration's Office of Management and Budget (OMB) in 2006. Those guidelines, applicable to all federal statistical agencies, impose among other requirements a prohibition against "political and other undue external influence in developing, producing, and disseminating statistics."
      The plaintiffs in the New York case also alleged that Ross's decision amounted to "invidious discrimination" in violation of the equal protection component of the Fifth Amendment's Due Process Clause, but Furman found they had not produced sufficient evidence on that count. On the other hand, Furman found that Ross had violated the APA in any number of respects by failing to follow required procedures and by making a decision that was "unsupported by, or even counter to, the evidence before the agency."
      Judge Richard Seeborg's 126-page decision in the California case, issued last week [March 6], went one step beyond Furman's by finding Ross's decision to violate the requirement in the Constitution's Enumeration Clause (Art. I, sec. 2, cl. 3) for an "actual enumeration" of inhabitants every 10 years to apportion members of the House of Representatives among the states. Seeborg, like Furman a former federal prosecutor appointed to the bench with no history of liberal Democratic politics, went further than Furman in refuting one of the justifications Ross claimed for his decision.
      Ross claimed, in testimony before a congressional committee, that he added the citizenship question at the request of the Justice Department, which purportedly saw the information as useful in enforcing the federal Voting Rights Act. In fact, the then attorney general Jeff Sessions forwarded the request only after Ross and his staff had repeatedly importuned Justice to make it.
      With all these legal defects, Ross's decision ought not stand after serious judicial review at the Supreme Court. With two Trump appointees added to a Court already dominated by executive branch-leaning justices, however, that outcome of the case is far from certain.

Sunday, March 3, 2019

Atheists Get No Respect in Peace Cross Case

      Supreme Court justices struggled last week [Feb. 27] with the issue of how to reconcile the constitutional prohibition against establishment of religion with the prominent display of a 40-foot Latin cross on a public right of way to memorialize fallen U.S. soldiers from the First World War. By the end of the expanded 70-minute oral argument in the Peace Cross case, a majority of justices clearly had no inclination to interfere with the war memorial cross at its present location in the middle of a busy traffic intersection in Prince Georges County outside Washington, D.C. 
      The atheists and nonbelievers who brought this lawsuit seven years ago were fated to lose once it reached a Supreme Court that has been increasingly uninterested in policing the separation of church and state. Still, they might have expected more respectful treatment in oral arguments in American Legion v. American Humanist Association than to hear two of the justices suggest from the bench that they had no business bringing the suit in the first place and were nothing more than obstinate troublemakers. 
      The belittling of the American Humanist Association's suit seeking to move the cross from its present location on property claimed by the National Capital Park and Planning Commission began with the opening words of the American Legion's attorney, the invariably pugnacious conservative Supreme Court advocate Michael Carvin.  The Peace Cross "should be upheld under any sensible Establishment Clause analysis," Carvin told the justices, disrespecting not only the plaintiffs but the two Fourth Circuit judges who found the cross to be an unconstitutional establishment of religion. 
      The Legion and the park and planning commission both base their defense of the cross on the argument that it has, in the words of the commission's attorney former U.S. solicitor general Neal Katyal, "independent secular meaning" as a memorial apart from its religious significance. In their decision in the case, the two-judge majority on the Fourth U.S. Circuit Court of Appeals acknowledged the cross's secular purpose but went on to carefully review the history of the cross and judge it under the Supreme Court's existing precedent: the established if controversial test set out in Lemon v. Kurtzman (1971). 
      The Lemon test has been criticized by a majority of justices over the years, as Justice Neil Gorsuch noted during arguments, but "never at the same time" and thus never overruled. Applying that test, Fourth Circuit judges James Wynn and Stephanie Thacker found in Thacker's detailed opinion that the cross failed the second and third prongs of the test because it would be reasonably seen as endorsing a specific religion and because it resulted in government entanglement with religion. 
      Thacker emphasized that the fundraising for the cross in the early 1920s rested on Christian rather than ecumenical themes and that the dedication and later observances at the memorial have been exclusively Christian. She acknowledged that passive religious displays are given deferential treatment under Lemon but noted that the governmental planning commission has spent tens of thousands of taxpayer dollars on maintenance and upkeep since assuming responsibility for the cross. 
      Instead of Lemon, Carvin urged the Court to apply a more lenient test, drawn from the recent decision in Van Orden v. Perry (2005) to uphold the placement of a Ten Commandments monument on the grounds of the Texas state Capitol, that finds no Establishment Clause violation unless the government is effectively coercing nonbelievers into religious observance. 
      In her turn at the lectern, the humanists' lawyer Monica Miller was forced to spend valuable time defending the decision to bring the suit after the cross had stood, seemingly without controversy, for nearly 90 years. The suit was about nothing more than the atheists' view that the cross was "too loud," Gorsuch suggested.  "Why shouldn't we apply our normal standing rules and require more than mere offense to make a federal case out of these?" Gorsuch asked.
       "I don't think it's mere offense," Miller replied. "We're talking about the government being the speaker and essentially giving you the message as the non-Christian in your community that you are a lesser citizen."
      A few minutes later, Justice Samuel A. Alito Jr. similarly saw no reason for the suit. "In a pluralistic society," Alito remarked, "ordinary people get along pretty well — and are not at each other's throats over religious divisions." As for the need for civility, Miller answered indirectly after exchanges with other justices by noting that she herself had received death threats because of her role in the case and her clients threatened as well.
      By the end of the argument, Court watchers counted no more than two justices, Ruth Bader Ginsburg and Sonia Sotomayor, as probable votes against the cross, with perhaps one of their liberal colleagues, Elena Kagan, but probably not with Stephen Breyer, author of the pivotal opinion in the Ten Commandments case.
      For the majority, however, the case will pose a difficult task of threading a 40-foot cross through the needle of Establishment Clause jurisprudence. The challenge for the assigned author will be to find a "sensible" way, to borrow Carvin's phrase, to find it no establishment of religion for the government to maintain what is concededly the preeminent symbol of Christianity as a memorial to fallen soldiers with none of the symbols of the many other faiths represented in this pluralistic society.