Saturday, September 14, 2019

Roberts Court Indulges Trump on Asylum Rules

      The Supreme Court played the role of President Trump's lap dog once again last week [Sept. 11] by allowing the administration to put into effect new asylum rules that effectively nullify the federal law guaranteeing asylum applicants the chance to make their case in U.S. immigration courts.
       Trump trumpeted the Court's action, with two liberal justices dissenting, as a "big win" for the administration. The Court's brief, unsigned order in Barr v. East Bay Sanctuary Covenant greenlighted new rules that a federal judge in San Francisco had found to be inconsistent with U.S. asylum law and that a federal appeals court had blocked pending the government's appeal.
      Apart from the merits of the issue, the episode is significant as the administration's most recent instance of asking the Court for "extraordinary" relief in high-profile legal disputes after losing in lower courts. Under ordinary procedures, the losing party in a lawsuit is not entitled to stay the effect of a lower court decision while pressing its appeal.
      The Trump administration, however, has resorted with what one expert calls "unprecedented frequency" to asking the Supreme Court to stay adverse decisions in lower courts  with the outcome on appeal uncertain. Steven Vladeck, a law professor at the University of Texas in Austin, shows in a new law journal article that the Trump administration has sought extraordinary relief from the Supreme Court more than 30 times in the past three years, more than twice the number of such instances by the previous two administrations over the previous 16 years.
      The Court's decision to allow the new asylum rules marks the second time in less than three months that the justices let this most lawless of presidents put into effect a policy on a highly charged political issue that a lower court had blocked. The justices divided 5-4 in an unsigned order issued on July 28 that allowed the administration to transfer Defense Department funds to Trump's southern border wall after Congress refused to appropriate funds for that purpose.
      In that instance, the Court gave a reason of sorts for its action. The unsigned, one-paragraph order noted "strong doubts" that the environmental groups challenging the reprogramming of military funds had legal standing to vindicate Congress's authority over federal spending. Vladeck criticizes both the administration's tactics and what he calls the Court's "acquiescence" in the unusual practice as short-circuiting ordinary appellate procedures to the disadvantage of private parties challenging the government.
      Ostensibly, the Court's rules requires an applicant seeking a stay of a lower court decision pending appeal to show it will suffer irreparable injury without a stay. Vladeck notes that Roberts has written that the government suffers an irreparable injury when blocked from putting its policies into effect during a legal challenge. Private plaintiffs unsuccessfully challenging a government policy do not get that kind of solicitude if they complain of irreparable injury while they suffer the effects of the challenged policy.
      The Trump administration has had what Vladeck calls a "middling" success rate on these extraordinary requests. Along with the latest wins on asylum rules and the border wall funding, the administration was also allowed to put into effect its limits on transgender military service members despite four lower court rulings to block it.
      The justices also favored the administration by blocking the federal judge in the census case from deposing Commerce Secretary Wilbur Ross under oath about his reasons for adding a citizenship question to the 2020 census. On the other hand, the Court refused to let the administration rescind the Obama policy known as DACA — deferred action for childhood arrivals —  pending a final decision in the cases challenging the administration's action.
      In the most recent instance, Justice Sonia Sotomayor cited Vladeck's study in criticizing the Court's receptivity to the administration's pleas. "[G]ranting a stay pending appeal should be an 'extraordinary' act," she wrote, quoting a prior decision. "Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively."
      Vladeck implicitly argues that the full Court should be objecting to the administration's tactics. The Court, he notes, has made "no suggestion . . . that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds."
      The administration and its supporters defend the practice by complaining that federal district court judges have been freer than in the past in issuing nationwide injunctions to block administration policies pending appeals. Attorney General William Barr noted in an op-ed in the The Wall Street Journal that federal judges have issued 40 nationwide injunctions during the Trump years, but issued only 20 such rulings during the eight years of the Obama administration.
      Jonathan Turley, a frequent legal affairs commentator and law professor at George Washington University Law School, similarly sees the administration's tactics as a response to nationwide injunctions, which he says create "a dysfunctional element in the court system and a more direct avenue to the Supreme Court for the government." Some of the justices, he adds, appear to be "losing patience with national injunctions by trials . . . ."
      The Roberts Court has been less than evenhanded in the area. The Court took no action to allow the Obama administration to put its so-called DAPA policy — deferred action for parents of Americans — into effect after a federal judge in Texas issued a nationwide injunction to block the policy. The Court's solicitude toward Trump's policies is further evidence, alas, that the five Republican-appointed justices did not leave their party registration cards behind them after donning their judicial robes.

Sunday, September 8, 2019

In Carolina, GOP Nixes Racial Justice on Death Row

      North Carolina's legislative and gubernatorial elections in 2012 turned out to be matters of life or death for six of the 143 inmates currently awaiting execution on the state's death row.
      The elections that allowed the Republican Party to gain the governorship along with control of the state's legislature resulted less than a year later in the repeal of the state's widely hailed Racial Justice Act. That law, enacted in 2009 and signed by the Democratic governor Beverly Perdue, gave death row inmates a new path to overturn their death sentences by proving racial discrimination in the verdicts or sentences that condemned them to execution.
      Four inmates succeeded in reducing their death sentences to life imprisonment under the law before the Republicans repealed the law.  Perdue had vetoed a GOP-backed repeal in 2012, but the new Republican governor, Pat McCrory, signed a repeal after the Republicans voted again in 2013 to kill the law.
      The repeal included a provision eliminating any relief for inmates not yet final when the repeal took effect. Now, the North Carolina Supreme Court is considering whether the legislature violated constitutional rules in sending those four inmates back to death row and in blocking hearings for two other death row inmates pending at the time of repeal.
      The state high court, with a 6-1 majority of Democratic appointees, heard nearly four hours of arguments in the six cases over two days late last month (Aug. 26 and 27). The arguments from the inmates' attorneys made clear that the racial bias in the four reversed cases might have been strong enough to warrant relief under strict federal constitutional rules even without the easier path under the repealed state law, which required proof only that race was "a significant factor" in verdict or sentence.
      The four reversed cases all came from Cumberland County, which includes the state's sixth largest city Fayetteville. The county's overall population is around 55 percent white and 35 percent black. But the juries in all four cases were all white, thanks to tactics that state prosecutors are instructed to use to justify excluding black jurors.
      In Marcus Robinson's trial, for example, prosecutors rejected half of the qualified black jurors, but only 14 percent of the others. One black juror was disqualified after acknowledging that he had not graduated from high school and that he had difficulty reading — questions not asked of white jurors.
      In Christina Walters' trial, prosecutors excluded 10 of the 14 qualified black jurors, but only four of the 27 qualified white jurors. Tellingly, Walters' two white attorneys failed to preserve objections under the Supreme Court precedent, Batson v. Kentucky (1986), that bars the use of race in exercising peremptory challenges to exclude potential jurors.
      The trials of the two other inmates who won temporary reprieves from their death sentences, Quintel Augustine and Tillman Golphin, followed that pattern. In the arguments last month, one of the North Carolina justices openly acknowledged that the state has done very little to put Batson into effect. The non-profit Center for Death Penalty Litigation has reported that more than half of the state's death row inmates were sentenced by juries with no or little minority representation.
      For Andrew Ramseur and Rayford Burke, the repeal of the Racial Justice Act came as their cases were pending and not yet ruled on. Ramseur's trial in 2010 came against the backdrop of racial sentiment akin to the kind of public hysteria associated with the lynching era. One commenter on the local newspaper's website remarked, "He should be hanging from the nearest traffic light as a warning to the others." At trial, four rows for courtroom spectators were cordoned off by crime scene tape, ostensibly to protect Ramseur.
      In the oral arguments last month, attorneys for the inmates fashioned several arguments to challenge the legislature's authority to strip the inmates of the relief they had won before the Racial Justice Act was repealed or to deny hearings for the other two. The exact issue was unprecedented, as Cassandra Stubbs, the director of the American Civil Liberties Union's death penalty project, wrote in her brief for Robinson. “Never before has any legislature enacted a statute designed to remedy suspected systemic racial bias in capital sentencing,” Stubbs wrote, “only to repeal such a statute when the racial bias was found.”
      The closest precedent in North Carolina law is a 19th century decision that blocked the legislature from superseding a post-Civil War amnesty granted to former Confederate soldiers for crimes committed under orders during the war. Lt. Col. James Keith was accused of massacring 13 civilian prisoners, but the state supreme court ruled that he was entitled to the benefit of the legislative amnesty even though later repealed.
      The inmates' other arguments centered on traditional constitutional principles against ex post facto laws or double jeopardy. They also argued that the provision specifically nullifying any relief that the inmates had already won amounted to an unconstitutional bill of attainder — the term for legislative imposition of punishment.
      The state's lawyers responded, somewhat weakly, that the inmates still had avenues to seek new trials or new sentences even without the repealed state law. In four hours of arguments, the justices seemed to be inquisitive more than argumentative, but the political tinct to the cases suggests that the state is arguing uphill before the Democratic-majority court.