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, Other Legal Battles

Things the law can do

On Sept. 4, 2014, the law accomplished six things:

1) It authorized a federal investigation of a police department that has come under fire for discriminatory and unconstitutional policing.

2) It convicted a former state governor of corruption and other wrongdoing committed while in office.

3) It ruled that an oil corporation was “grossly negligent” in causing an environmental disaster, subjecting it to billions in fines.

4) It declared unconstitutional same-sex marriage bans in two Midwest states.

5) It upheld the validity of federal subsidies for access to healthcare for millions of poor people and others who can’t otherwise afford it.

6) It protected the right to vote of hundreds of thousands of minorities whose access to the ballot was restricted for politically driven reasons.

Sometimes the law can be perverse, even grossly unfair. Today, the law did the world some good.

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Constitutional Conflicts, Other Legal Battles

Obama, the lawless one

Congress didn’t do much during the year, but it went on summer vacation anyway.

In the interim, President Barack Obama has announced that it will act unilaterally to mitigate the immigration crisis. The president’s opponents have called his intent to act on immigration “lawless.”

The thing is, nobody knows what Obama is planning to do. All that’s known is that he plans to act before the congressional recess is up.

Some analysts predict the president will expand the deferred-action program, which has allowed thousands of undocumented students to not have to worry about deportation and to obtain lawful employment. It’s unclear how large the expansion will be, or whether it will include DREAMers’ family members.

Other predictions point to Obama relaxing rules defining who counts as a “low-priority” immigrant, that is, those who are not a risk to public safety.  If the rules change, it’s possible that persons who have been convicted of minor offenses—unlike serious or violent ones—will not be considered “deportable” and will be allowed to stay.

No matter Obama’s executive action on immigration, his critics in the House and the Senate have prejudged his plans. “Obama is acting lawlessly.” Others sound a louder alarm: “Obama is violating the Constitution.”

But is that so?

A look at history and Obama’s background reveals things aren’t as egregious as Republicans make them sound, and that the president does not need the permission of Congress to promote measures that are within his faculties as enforcer-in-chief.

The Constitution grants the president, as executor of the laws, the last word on how to enforce them. If he feels like it, he may choose not to enforce them. That’s what’s known as “prosecutorial discretion.”

Police do the same thing all the time. The law prohibits jaywalking, but you don’t see the NYPD arresting the thousands who jaywalk daily. Or issuing summonses to everyone who crosses the street with a red light. Or stopping every car that goes over the speed limit.

Kenneth Thompson, the Brooklyn district attorney, announced in July that he would not prosecute certain low-level drug offenses. His statement supporting the move was classic prosecutorial discretion: “This new policy is a reasonable response to the thousands of low-level marijuana arrests that weigh down the criminal justice system, require significant resources that could be redirected to more serious crimes and take an unnecessary toll on offenders.”

Of course, no one is going around calling Thompson lawless. (Though some have expressed reservations from a public-policy standpoint.)

Similarly, there are thousands of laws on the books the government never enforces—the statutes are either too old or the enforcers lack the resources to go after all the law-breakers. So government chooses not to prosecute. And that discretion is entirely within the province of the law enforcer.

In Obama’s case, what wouldn’t be within his province as chief law enforcer would be to go beyond what the law allows, like granting permanent residence to undocumented immigrants or federal benefits such as Social Security. That would be a lawless act.

But deciding not to do something—like not deporting certain persons without lawful status or making exceptions in special cases—is perfectly constitutional. Other presidents have done it—in areas such as immigration, criminal prosecutions, tax law, and administrative law. It’s nothing new.

Congress can continue enjoying its vacation.

(A version of this article was published in Spanish in the print and online editions of Los Angeles’ La Opinión.)

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Other Legal Battles, Supreme Court

Jesus and Hobby Lobby

If I had argued the Hobby Lobby case before the U.S. Supreme Court back in March, my opening statement would’ve gone something like this: “This case is about God and money, and how Jesus said that you cannot serve both.”

Or maybe like this: “This case is about Christians and government, and how believers are called by their Master to give Caesar what is Caesar’s, and God what is God’s.”

This one’s good, too: “This case is about Jesus and women, and how he elevated their status in a patriarchal society that viewed them as second-class citizens.”

I can probably think of others.

Not sure how the justices would’ve reacted to any of those openers, but the court’s controversial decision in Burwell v. Hobby Lobby—ruling that a closely held corporation can have deeply held beliefs and deny contraceptive coverage based on those beliefs—made me think about what Jesus would have made of the debacle. Wasn’t this a win for religious liberty after all?

The Supreme Court doesn’t shy away from the subject. Just this past term, in Town of Greece v. Holloway, it sided with a New York town in upholding its practice to open its townhall meetings with prayer—a custom the court ruled consistent with American tradition and not at odds with the First Amendment.

That ruling, widely praised by evangelicals, too made me think of its implications for religious liberty. For many—for me—religion is something deeply personal and sacred, reserved for moments of devotion or the sanctuary. But Town of Greece was a sweeping decision, reaffirming the notion held by some of America as a “Christian nation.”

So, W.W.J.D.?

The biblical record offers some clues. Jesus was big on prayer, but a minimalist about it. The Lord’s prayer is about 70 words long. The Gospels have no record of him praying on government premises. In the face of Pontius Pilate—one of the few times he stepped on government property—he barely mustered a word. He preferred quiet prayer, in the wee hours of the morning, all by himself. In a parable denouncing self-righteousness, he took issue with religious leaders who prayed pompously, within earshot of those they viewed as less-than-holy.

The narratives that have emerged from the Hobby Lobby ruling—religious liberty, the rights of women vis-à-vis faith-based corporations—are also curious in light of what Christ stood for, or didn’t stand for.

Laying aside whether Christ would’ve cheered the outcome of a Roman tribunal—Hobby Lobby is being hailed as a major victory by Christians—Christ had little interest in advancing political agendas or mounting challenges to the imperial regime. When asked whether it was right to pay taxes to the Roman emperor, he minced no words: “Give to Caesar what is Caesar’s, and to God what is God’s.” (The Pharisees, who depended largely on the charity of their Jewish parishioners for sustenance, were not pleased.)

The profit-growing corporate structure hadn’t been conceived at the time, but that didn’t keep Christ from talking about money. A lot.

A young, rich man had the letdown of his life when Jesus told him that the “one thing” he lacked to inherit the Kingdom was to sell all his possessions, give the proceeds to the poor, and follow him. After the episode, Christ famously said: “It is easier for a camel to go through the eye of a needle than for someone who is rich to enter the kingdom of God.” In Christ’s economy, love of God and mammon couldn’t coexist. Years later, the apostle Paul would write to his friend Timothy that “the love of money is the root of all kinds of evil”—another popular adage.

But it wasn’t money in the abstract that Jesus took issue with, but the accumulation of it. He’d much rather his followers “store up treasures in heaven” than on earth, where it holds a corruptible power. When merchants and money changers set up shop in the temple, Jesus wouldn’t have any of it; he turned over tables in anger.

And Christ was a feminist par excellence. Perhaps not the kind that would show at pro-choice rallies. But he was unafraid to look women in the eye, have a conversation with them, and remind them of the value that centuries of paternalism took away from them. That included his mother. His friends Mary and Martha. The Samaritan woman at the well. The woman who touched the hem of his robe. The mothers of the many children he healed. He shunned not one of them. He treated them all with dignity. Religious leaders wanted the death penalty for an adulteress “caught” in the act—curiously, her co-defendant was nowhere to be found—but Christ issued no condemnation. Not one stone was cast.

All of this came to mind as Christians rallied around Hobby Lobby and its owners, entrenching themselves deeper in a culture war with government, federal law, and women in need of contraceptive access.

Probably none of these points were raised in the court filings leading up to the Supreme Court’s pronouncement, or would have mattered much to the justices. But they should at least give people of faith reason to pause and ponder. Is this warfare what Christ had in mind when he called them the “salt of the Earth” and the “light of the world”?

Because embracing religious liberty is one thing. Taking Caesar to court over it is quite another.

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Civil Rights, Other Legal Battles

Defender of rights, not murderers

Debo P. Adegbile is not a household name. After what happened to him in the United States Senate, he may never be.

Born and raised in New York, Adegbile, a lawyer, was nominated by President Barack Obama to lead the Civil Rights Division of the Department of Justice. The Senate rejected his nomination.

Adegbile’s capital sin: Defending a murderer.

When he worked for the NAACP Legal Defense Fund, Adegbile represented Mumia Abu-Jamal, a man convicted and sentenced to the death penalty for the murder of a Philadelphia police officer. In life and politics, those who kill police officers are not well-liked.

But under the Senate’s reasoning, lawyers who defend such clients also are not well-liked.

Adegbile’s defense, it should be noted, had nothing to do with claiming innocence for Abu-Jamal; the jury had already convicted him. Adegbile represented him after he had been sentenced to die. He argued that the sentencing judge made a procedural error that violated his client’s constitutional rights.

Why did the Legal Defense Fund get involved? Because the death penalty, historically, has been applied disproportionately to more blacks than whites. The organization decided to appeal the sentence because racial considerations may never factor into the conviction phase in a criminal case. Never. (Two appeals courts, in 2008 and 2011, sided with the Legal Defense Fund.)

The law notwithstanding, the Senate was moved by a choir of senators who branded Adegbile a “defender of murderers”—or worse, a cop killer advocate—and ultimately rejected his nomination to a federal office charged with protecting civil rights. Precisely for defending someone’s civil rights.

What the Senate did is not only unheard-of, but it sets a terrible precedent, for a number of reasons.

First, because everyone has constitutional rights, among them the right to be represented by an attorney in a criminal case. In rejecting Adegbile for representing an unpopular client—also endowed with rights—the Senate dealt a slap in the face to lawyers who represent those society deems undeserving. But the beauty of the Constitution is that it is not a respecter of persons. Everyone is entitled to zealous and meaningful representation, no matter the crime—even the murder of a police officer.

Second, the Senate dealt a blow to public service. Being a civil-rights lawyer or a public defender is not as lucrative as being a corporate lawyer. Defending a Latino accused of stealing a bicycle is less lucrative than defending a Wall Street banker accused of stealing millions.

The very chief justice of the United States, John Roberts, once defended a serial murderer. The big difference between Roberts and Adegbile is that the former did so while working for a white-shoe law firm—the kind that defends Wall Street executives—while Adegbile defended Abu-Jamal as an LDF attorney. But of the two, only Roberts was blessed with Senate confirmation.

Lastly, Adegbile’s rejection by the Senate shows the power conservative news media wields in sowing fear in Congress and the public. Because no matter how sterling Adegbile’s résumé, the very fact of defending an unpopular client brought a wave of criticism by Fox News and its allies. All of it has been discredited as irrelevant or not based in fact.

You need a special kind of person to become a lawyer to the least fortunate, the outcasts, those people. When a branch of government calls into question that noble calling, even fewer aspirants will be led to choose that path.

And forget about aspiring to a presidential nomination. The chances are almost nonexistent.

(A version of this column was originally published in Spanish in the print and online editions of New York’s El Diario.)

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