Constitutional Conflicts, Immigration

What you need to know about the big immigration hearing

(This article was originally published at Latino Rebels.)

Yesterday, a federal judge in Brownsville, Texas, heard arguments from 25 states and the federal government on whether to block President Obama’s executive order on immigration. Here’s what you need to know about Texas v. United States, the name the case has been assigned:

1) This Is Only the Beginning of the Lawsuit

The case before U.S. District Judge Andrew Hanen, a George W. Bush appointee, is still in its infancy stages. A trial, if one occurs at all, is still long ways away. But yesterday’s hearing was important because it could signal what could occur at trial. One of the questions Judge Hanen will be deciding is the states’ “likelihood of success on the merits”—that is, the likelihood that they actually have a winning case.

So far, that question is up in the air. Late last year, a federal judge in Washington, D.C. threw out a similar lawsuit by Arizona sheriff Joe Arpaio, noting in her decision that the sheriff likely could not win on his claim that the president acted unconstitutionally when he issued his new immigration directive. Part of yesterday’s hearing centered on this constitutional argument.

2) That said, the Judge Won’t Be Ruling on the Constitutionality of the Program

“This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution,” the states argued in court documents. That’s the bottom line of the states’ lawsuit: they seek the invalidation of the program on constitutional grounds. But the court won’t be deciding the constitutionality of the program. At least not yet.

Though that question certainly reared its head in yesterday’s hearing, Hanen will only be deciding whether to grant a preliminary injunction, an extraordinary remedy that prevents the allegedly offending party from hurting the party that’s suing—here, the federal government and the several states, respectively. It’s similar to a restraining order, a temporary court order that forbids conduct while the court reaches a final decision on a matter.

But the Supreme Court has said that a preliminary injunction is an extraordinary measure—courts shouldn’t grant them lightly. Which is why yesterday’s hearing was a big deal. And the burden will be on Texas and the other states to make a clear showing that they’re entitled to an order that puts a stop to the program.

3) To Grant an Injunction, the Judge Will Rule on Whether the Executive Order Causes Harm.

A key dispute the judge will decide is whether President Obama’s immigration order somehow “injures” the suing states. But the federal government and the states are interested in this particular dispute for different reasons.

The Obama administration argues the executive order doesn’t harm the states at all and thus the lawsuit should be dismissed altogether—that the states lack “standing” to sue. The government contends that the new deferred-action policy doesn’t mandate the states to take any action; the states aren’t themselves targeted by it. And because the states are “neither prosecuted nor threatened with prosecution” as a result of the executive order, they’re essentially third parties without a stake in government’s policy choices regarding immigration. They have no business bringing this lawsuit.

The states, on the other hand, not only argue that the executive order does harm them, but that it also “irreparably” harms them—that it injures them so severely that the judge must order an injunction to stop the program from even taking effect. The states assert, among other things, that the immigration plan imposes huge administrative costs on them, that it will set off a new wave of illegal immigration leading to another “humanitarian crisis” in border states, and that beneficiaries will be eligible for state programs that they otherwise wouldn’t be eligible for.

4) Which Side Has the Better Case?

There is broad consensus that the president has the better argument. A number of legal scholars and immigration experts have come out in favor of the constitutionality of President Obama’s executive order, which finds its roots in existing immigration law and longstanding prosecutorial discretion—the president’s prerogative to enforce or not enforce the laws with respect to deportations. And because Congress is in charge of passing immigration laws—yesterday, the House of Representatives did just that—Judge Hanen may be disinclined to settle a dispute between co-elected branches.

The federal government also has some allies. A coalition of 12 states filed a legal document in support of the new policy, arguing that its effects are beneficial for local economies. And an alliance of police chiefs from major cities submitted court documents arguing that the president’s order helps to “to effectively police and protect the communities they serve.” The aim of both these groups is clearly to counter the states’ claims that the new immigration policy harms them.

Some opponents of the measure, such as libertarian think-tank Cato Institute, do not focus so much on the harm aspect—in fact, the group thinks it’s “good policy”—but merely argue that the president engaged in executive overreach. They contend, among other things, that Obama violated the Constitution by failing to “take care that the laws be faithfully executed” and enacting a policy that simply advanced his agenda. Cato maintains that the new immigration order is in direct conflict with the will of Congress as expressed in immigration laws currently on the books.

This is a point to watch—Obama has said on numerous occasions that he can only act within the parameters of the law. A finding that the immigration order actually violates federal law would indeed undermine the whole program. But Judge Hanen won’t be deciding that any time soon—he’ll only decide the likelihood that that might be the case.

5) What’s Next?

A small waiting period. Because Texas and the other states are only seeking temporary relief, an order from the judge granting or denying the injunction shouldn’t take long—at the hearing, Judge Hanen said he won’t rule until after Jan. 30. (The judge who ruled on Joe Arpaio’s case only took one day to rule.)

If the federal government wins, the injunction would be denied and the case would be dismissed; the repercussions, other than an appeal, would be minor. A win for the states, however, could potentially deal a huge blow to the Obama administration and immigration advocacy groups, which have been engaging in significant prep work ahead of the new program’s rollout. It could cause major disruption unless a higher court intervenes. Win or lose, there would probably be an appeal. And given the significance of the executive order on immigration, the case might even reach the Supreme Court—before it even goes to trial.

Whatever the outcome, yesterday’s hearing is only the beginning of a case that could potentially drag on for years, politicizing the issue of immigration further as the litigation advancess. Since there’s agreement that millions would benefit from the new executive order, the quicker the court makes a decision and eliminates uncertainty, the better.

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Civil Rights, New York

What it means when police turn their backs

(This article was originally published on Fox News Latino.)

Public servants take an oath to protect and uphold the Constitution and laws. From that solemn oath stems a police officer’s duty to serve and protect the public. The Constitution is merely a reflection of the will of the people.

The rule of law also flows out of the Constitution: the democratic order, public institutions, statutes and regulations, policing itself. Law and order exist because as society we have deemed vital to grant a shield, a weapon, and a salary to the men and women tasked with keeping it.

That’s why New York and the country shook when a deranged gunman shot and killed police officers Rafael Ramos and Wenjian Liu. When you threaten the life of a police officer, you threaten the rule of law itself. Everyone feels unprotected.

But we also feel unprotected when police turn their backs. That’s precisely what happened when scores of people in uniform—ostensibly in mourning over Ramos and Liu’s senseless deaths—turned their backs on Mayor Bill de Blasio during the officers’ funerals.

Turning your back on the mayor is not a protest. A real protest is a legitimate part of the social contract, enshrined in the First Amendment right of free speech. Nothing stops an officer from freely expressing himself or criticizing political leaders when off duty, or in private with colleagues and family members.

But when a police officer—in uniform, armed, and bearing a shield that represents us all—stages an act of defiance in public and in front of an official elected by the public, there’s nothing legitimate or democratic about his actions. It’s insubordination. It’s a violation of their oath to protect and uphold the Constitution and laws.

Suppose for a moment that another lunatic with a gun, the kind that kills public officials, would’ve interrupted the ceremonies. Would any of the back-turning officers have bothered to make the ultimate sacrifice and protect the mayor? Would they even have noticed? Anyone worthy to bear the shield of the state stands at attention in time of crisis, not turn his back.

Which is why this spectacle should not be read through the lens of politics or opportunism; it is instead a constitutional problem. What happened in New York should be a cautionary tale for the United States. Is this the kind of force the country wants enforcing its laws, its ideals, its institutions?

The irony of this episode is that it finds its roots in another constitutional issue: the discriminatory application of stop-and-frisk tactics on New Yorkers of color. Last year, a federal court in Manhattan declared the NYPD’s application of such tactics unconstitutional. But police unions attempted to appeal the ruling, arguing in court that compliance with it dealt a blow to police morale and its bargaining rights with the city. A panel of federal appellate judges roundly dismissed those concerns.

It’s a troubling precedent nonetheless—the notion that police reputation and self-interest somehow trumps compliance with the Constitution. That it trumps the will of the people. The same people who put Bill de Blasio in power. The same people who grew weary of stop-and-frisk and simply asked for fairer treatment from those who took an oath to serve and protect them.

If police turning their backs on an elected leader—on the people—doesn’t get us to rethink the kind of men and women we want defending everything we hold dear, then nothing will.

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Civil Rights, New York

Dante and democracy

(A version of this post first appeared at Latino Rebels.)

It’s all Dante’s fault.

Were it not for his son, Bill de Blasio would probably not have won New York City’s Democratic primary, let alone the mayoralty. And the mess that boiled over last week between the mayor and the NYPD would’ve never happened.

Dante—or rather, the political ad featuring him—was a hit with New Yorkers because of his massive afro, his likeability, and his message on a controversial police tactic.

“He’s the only one who will end the stop-and-frisk era that unf airly targets people of color,” he said in the ad, echoing his father’s unflinching stance on discriminatory policing.

The ad was a smash because it not only captured de Blasio’s policies within the context of family life, but also because Dante looked like many of the thousands of minority youths who were subject to suspicionless stop-and-frisk tactics during the Michael Bloomberg years. When New Yorkers saw Dante, they saw themselves.

Today, police unions and a subset of the NYPD have gone to war with Bill de Blasio over Dante. They have other grievances, too, but they specifically felt the mayor threw them under the bus when he decided to bring up “the talk”—that uncomfortable but necessary conversation nearly every parent or father figure to a young man of color has had over potential dealings with police.

Dante is “a good young man, a law-abiding young man, who would never think to do anything wrong,” said de Blasio at a news conference following the non-indictment in the case of Eric Garner, the Staten Island man who died in a chokehold banned by NYPD policy.

“And yet,” the mayor said, “because of a history that still hangs over us, the dangers he may face—we’ve had to literally train him, as families have all over this city for decades, in how to take special care in any encounter he has with the police officers who are there to protect him.”

These were not fighting words; they were never meant to be. They were simply a candid acknowledgment of a painful reality for many New Yorkers of color, at a moment they needed to hear their lives mattered—and that leaders, institutions, and the rule of law were not out of touch with their suffering.

The speech was a mere repeat of Dante’s ad message: how to roll in a city where it seems the law somehow treats minorities unfairly. De Blasio merely repackaged it live, raw, and uncut. It was the message that won him a majority of the votes and the mayoralty.

But it hit a raw nerve with police unions. They took de Blasio’s personal narrative and distorted it as an attack on police—a “broad brush” that, in the words of Patrolmen’s Benevolent Association president Patrick Lynch, “laid on the shoulders” of the NYPD the weight of a history of racism.

Of course, de Blasio’s remarks did none of that. He was speaking to his constituents—the same New Yorkers who identified with Dante and are still grappling with the legacy of stop-and-frisk, “broken windows” policing, and a non-indictment that, even to police supporters, seemed unwarranted. That’s what political actors do in times of crisis.

Lynch missed out on all of this, or at least pretended to miss out on it; he’s also a political actor. The big difference is that he’s not beholden to the Constitution or the interests of the public, but to his own and those of the officers he represents. To Lynch, any crisis is an opportunity—to score points, to secure a contract, to win reelection. He’s as much a politician and a public-relations expert as anything else.

And because he’s those two things, Lynch won’t say if he was the one behind a group of rank-and-file officers who turned their backs on de Blasio at officer Rafael Ramos’ funeral. But his specter remains. And it seems his campaign is working: the NYPD appears to have staged a quasi-walkout, refusing to keep law and order “unless absolutely necessary,” whatever that means.

At this juncture, the only question left for New York City as it heads into 2015—and by extension, America—is whether this is the caliber of men and women it wants enforcing its laws. Because police took an oath to defend the Constitution and to serve and protect people like Dante. And voters gave Bill de Blasio a clear mandate to do just that.

If police find democracy so inconvenient that it’s worth turning their backs on it, they’ve renounced their oath. They have no business bearing an arm and a shield given to them by the people.

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En Español

Cuando la policía nos da la espalda

(Una versión de esta columna fue publicada en la edición impresa y digital de El Diario.)

El deber más importante de un servidor público es defender la Constitución de su país. De allí es que nace la labor primordial de un policía: proteger y servir al pueblo. La Constitución no es más que un reflejo de la voluntad del pueblo.

Desde esa misma Constitución se desprende el Estado de derecho: el orden democrático, las instituciones, las leyes y reglamentos, la policía misma. Las fuerzas del orden existen porque como sociedad hemos decidido armar, uniformar y remunerar a un grupo de hombres y mujeres para que lo mantengan.

Es por eso que la muerte de los oficiales Rafael Ramos y Wenjian Liu sacudió a Nueva York. Cuando se atenta contra la vida de un policía, se atenta contra el Estado de derecho. Todos nos sentimos desprotegidos.

Pero igual nos sentimos desprotegidos cuando la policía nos da la espalda. Eso fue lo que ocurrió el sábado cuando decenas de uniformados —supuestamente de luto por la muerte de Ramos—, le dieron la espalda al alcalde Bill de Blasio durante el funeral del fallecido oficial.

Lo que hicieron estos uniformados no fue una protesta. Una verdadera protesta es parte legítima del contrato social, consagrada en el derecho a la libre expresión. Nada le impide a un policía expresarse y criticar a una autoridad cuando está fuera de servicio o en conversaciones privadas con colegas y familiares.

Pero cuando un uniformado, dotado de un arma y una insignia del Estado, se rebela en contra de un líder elegido por el pueblo en un acto público, su actuar no tiene nada de democrático. Es insubordinación. No es nada más y nada menos que una renuncia a su compromiso a resguardar la ley y el orden.

Imagínense que un maniático hubiese irrumpido en la ceremonia fúnebre, pistola en mano. ¿Habrían estado dispuestos los manifestantes a dar la vida por el alcalde? ¿A protegerlo del peligro? Lo más probable es que quizás ni se habrían percatado del riesgo. Un agente del Estado da la cara en tiempos de crisis, no la espalda.

La ironía de todo es que el show mediático que causó la policía neoyorquina el sábado es un capítulo más de una batalla campal que comenzó cuando De Blasio asumió el cargo. Porque fueron los votantes los que se cansaron de “stop and frisk”, una práctica discriminatoria e inconstitucional. Y fueron los votantes los que le dieron el poder a De Blasio.

Ahora esa misma promesa de campaña se ha vuelto en una espada de doble filo: la policía la está usando en contra de la voluntad del pueblo. Aquella mayoría que sólo pedía un trato más justo de sus fuerzas del orden.

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Immigration, Other Legal Battles

D.C. judge tosses Joe Arpaio’s immigration lawsuit

(A version of this article first appeared at Latino Rebels.)

Late Wednesday evening, a federal judge in Washington, D.C., dismissed a lawsuit filed by Ariz. sheriff Joe Arpaio challenging the legality of President Obama’s executive action on immigration.

In a 33-page ruling issued a day after the court heard arguments from the parties, U.S. District Judge Beryl A. Howell tossed the suit on “standing” grounds, noting that Arpaio only stated “generalized grievances” about the new immigration policy, but failed to point to a “concrete and particularized injury” requiring court intervention.

The judge anchored her ruling on “long-existing regulations” governing deferred action, which are rooted in the Immigration Reform and Control Act of 1986 and have long served as the basis for granting work authorization to undocumented immigrants.

“For almost twenty years, the use of deferred action programs has been a staple of immigration enforcement,” Howell wrote, noting the various ways the federal government has provided such a relief over time.

Arpaio was seeking to put a stop to the program temporarily while the case was litigated in court, but the federal government responded to Arpaio with a request of its own seeking dismissal of the entire case.

Interestingly, much of the court’s reasoning derived from another Arizona case, Arizona v. United States, the landmark Supreme Court case striking down key provisions of SB1070, the state’s infamous show-me-your-papers law. That case made clear that “state law enforcement and other officials have no authority” over immigration matters, which are the exclusive province of the federal government.

The court also brushed aside Arpaio’s pleas that allowing the president’s plan to move forward would lead to threats to his life, that it somehow would make his work as sheriff harder and more costly, and that the new policy would turn Arizona into a “magnet” for new immigrants, particularly criminals.

According to POLITICO, Arpaio attorney Larry Klayman has already appealed the decision, which he called “weak.”

Reaction to Arpaio’s latest news spread quickly last night on social media, with several immigrant rights activists weighing in on the decision. One social-media banner branded Arpaio a “loser.”

In a footnote, Judge Schwab also took a moment to address a recent federal court ruling out of Pennsylvania invalidating the new immigration policy. She deemed that ruling unpersuasive, in part because of the strange manner the judge reached his decision.

Shwab’s opinion serves as an important blueprint for what a federal court in Texas might do with a similar lawsuit by Gov.-elect Greg Abbott challenging the president’s executive plan. Since that case was filed, a number of other states have joined the lawsuit, the most recent being Tennessee, according to Nashville Scene.

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Civil Rights, Immigration

Arizona must grant driver’s licenses to dreamers

(A version of this post first appeared at Latino Rebels.)

In a short order issued Wednesday, the U.S. Supreme Court denied Arizona’s last-ditch request to block issuance of driver’s licenses to undocumented students granted deportation relief under the Deferred Action for Childhood Arrivals (DACA) program.

This lawsuit has been moving through the courts for years. Shortly after DACA was announced in 2012, the administration of outgoing Gov. Jan Brewer issued an order prohibiting beneficiaries under DACA to obtain driver’s licenses, arguing the program’s work authorizations were not sufficient proof of legal status. A number of civil rights organizations joined forces to challenge the legality of Brewer’s order in federal court.

In July, the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court with jurisdiction over Arizona, agreed with the civil rights organizations that Brewer’s policy was likely discriminatory towards undocumented youth. The court ordered the Arizona Motor Vehicle Division to treat the students as they would other noncitizens who can show employment authorization documents as proof of residency.

Dissatisfied with the decision, Arizona asked the same court for a rehearing, which was denied. Finally, Arizona asked the Supreme Court to halt the Ninth Circuit’s ruling. The high court denied that request on Wednesday.

Interestingly, three justices—Antonin Scalia, Samuel Alito, and Clarence Thomas—would have temporarily granted Arizona’s request to halt driver’s licenses. The same justices dissented in the 2012 case Arizona v. United States, which struck down important parts of SB1070, Arizona’s infamous show-me-your-papers law.

The case is not over: Arizona only requested a halt to the order forcing the state to accept DREAMers’ papers for purposes of driver’s licenses. The case is technically still “live” in the lower courts, which means there hasn’t been a definitive pronouncement that Brewer’s policy is unconstitutional.

But given the July ruling and today’s move by the Supreme Court, it’s likely Arizona will seek a settlement with the plaintiffs, unless Gov.-elect Doug Ducey, who has faced pressure to discontinue the policy, continues defending the lawsuit. According to AZcentral.com, Arizona is one of two states preventing so-called DREAMers from obtaining driver’s licenses.

Arizona’s loss before the Supreme Court arrives a day after U.S. District Judge Arthur J. Schwab, a George W. Bush appointee who sits in Pennsylvania, struck down President Obama’s executive action on immigration, which is set to expand the original DACA program to include parents of U.S. citizens and permanent residents, among other provisions.

The ruling, which arrived less than a month since the president’s announcement, has been sharply criticized by legal scholars and commentators. Orin Kerr, a law professor at George Washington University, called the decision “exceedingly strange.”

In a statement reported by The Huffington Post, a Justice Department spokesperson called the Schwab’s decision “unfounded” and noted that an appropriate response was forthcoming.

Other challenges to Obama’s immigration order, from Arizona sheriff Joe Arpaio and a group of more than a dozen conservative governors led by Texas Gov.-elect Greg Abbott, have been initiated in federal courts in Washington, D.C., and Texas.

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En Español

No a la politización de la tortura

El miércoles se celebró el Día Internacional de los Derechos Humanos. Ese mismo día, en Chile, un parlamentario pidió un minuto de silencio en el Congreso para honrar la memoria de Augusto Pinochet.

Parece un chiste cruel, pero así ocurrió. En los más de 40 años desde que el dictador le partió el alma a su país, siguen las divisiones sobre su legado. Aún se le homenajea, en desmedro de los miles que murieron, desaparecieron o fueron torturados bajo su régimen.

Estados Unidos tiene su propio historial de violaciones a los DD.HH. No son secreto de Estado.

El nuevo informe emitido por una comisión especial del Senado el martes agregó al listado de agravios. Dejó bien claro que la CIA, durante el mandato de George W. Bush, sí se excedió de su autoridad legal y rompió con protocolos al someter a presos de guerra a brutales interrogatorios. Tan brutales, que es más sensato llamarlos tortura.

La CIA se niega a tal designación. Como máximo, su director, John Brennan, llamó las tácticas “lamentables” y “aborrecibles”. Republicanos, por su parte, mantienen que las prácticas llevaron a la captura de Osama bin Laden y evitaron nuevos atentados como el del 11 de septiembre.

El informe del Senado refutó ambos argumentos. Pero la CIA y los Republicanos no dan el brazo a torcer. No hay quién convenza a quien.

Y de mantenerse así las cosas —o de anunciarse el enjuiciamiento de los responsables de estas atrocidades—, es posible que el tema de la tortura se polarice como lo han hecho el tema migratorio, el de la salud y el económico. Se volvería en otra contienda política.

Pero la tortura no se puede politizar. Si hay algo en que Demócratas y Republicanos debieran estar de acuerdo, no es sólo en la ilegalidad de la tortura, sino en su innegable inmoralidad. Siempre. Aceptar cualquier otra cosa iría en contra de la presunta autoridad moral que Estados Unidos pretenda ejercer en el resto del mundo.

Lo interesante es que el país ya ha tenido importantes debates morales en cuanto al valor de las personas, con altura de miras y sin cálculo político. Fue necesaria una guerra civil y centenares de miles de muertos, pero finalmente la nación pudo reconocer su error y terminar con la esclavitud después de defenderla por más de 150 años.

Lo mismo ocurrió con los campos de concentración japoneses de los años 40, tras el ataque a la base militar de Pearl Harbor. La Corte Suprema había declarado los campos legales, pero décadas más tarde los poderes del Estado supieron reconocer la injusticia, indemnizaron a las víctimas y se comprometieron para que tales agravios nunca volvieran a ocurrir.

Es por eso que el informe del Senado sobre la tortura, en vez de transformarse en un arma política que divida aún más al país, debiese ofrecer una oportunidad para que políticos de izquierda y derecha encuentren un punto en común. Un reconocimiento mutuo de que tal brutalidad no tiene cabida, y nunca más la tendrá, en el ordenamiento jurídico y moral del país.

Cualquier otra cosa sería defender lo indefendible. Al igual que inmerecidos homenajes.

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